Terms and Conditions

Terms of Use

HEATHER JAMES, LLC a California limited liability company (“Company,” “we,” “us,” or “our”), through our website https://www.heatherjames.com (the “Website”), provides interactive resources for its users (“Services”), including, but not limited to, the sale of fine art (“Goods,” which Goods are part of and sold through the Services). The Services and the purchase of Goods are subject to the following Terms of Use (the “Terms”), which may be updated by Company from time to time.

By accessing the Website, including the content made available on the Website (the “Content,” as defined in Section 1, below), and/or using the Services in any way, you are agreeing to comply with and be bound by the terms of these Terms of Use (“Terms”). In addition, these Terms, including Company’s Privacy Policy, and any other policies, rules or guidelines that may be applicable to particular offers or features on the Website, including, without limitation the Company’s Terms and Conditions of Sale, which may be found at www.heatherjames.com/terms-and-condition[1] (collectively, the “Additional Terms”) are hereby incorporated by reference into these Terms. By using or visiting the Website, you expressly agree to be bound by these Terms and to follow these Terms and all applicable laws, guidelines, and regulations governing the Website. To the extent that there is a conflict between these Terms and Additional Terms for the activity in which you choose to participate, the Additional Terms shall govern. These Terms will remain in full force and effect as long as you are a user of the Website and in the event of termination of any membership, service or feature, you will still be bound by your obligations under these Terms, including any indemnifications, warranties and limitations of liability. Should you object to any of the terms or conditions of these Terms, any guidelines, or any subsequent modifications thereto or become dissatisfied with Company or the Website in any way, you should immediately discontinue use of the Website.

YOU AGREE THAT BY USING THIS WEBSITE YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT.

IF YOU ARE UNDER 18 YEARS OF AGE, YOUR PARENT AND/OR GUARDIAN AGREES ON YOUR BEHALF TO ENTER INTO THIS AGREEMENT AND BE BOUND BY THESE TERMS. PLEASE REFER TO THE PRIVACY POLICY, INCORPORATED HEREIN BY REFERENCE, FOR INFORMATION REGARDING PERSONS UNDER THE AGE OF 18.

IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THIS WEBSITE.

Company’s sales of Goods are made pursuant to these Terms.  If Company receives a Transaction order (defined below) or other document from you that limits, or purportedly limits, acceptance to its terms or states that Company’s acknowledgement, shipping of Goods, commencing work on an order, or other act or failure to act constitutes acceptance of any offer on the terms of the purchase order or other document, any responding document sent by Company which expresses acceptance or confirms the order is expressly conditioned on your assent to the terms set forth herein and in such Transaction, and in such responding document.  Such assent shall be deemed given when the you accept shipment of any of the Goods described in any Transaction summary or invoice.  Company hereby objects to, and rejects, any term contained in your purchase order or other document if the term is different from or in addition to the terms herein.

It is your responsibility to periodically review these Terms. Nevertheless, Company reserves the right, at any time, to change the Terms by publishing notice of such changes on the Website. Any use of the Website and/or Services by you after Company’s publication of any such changes shall constitute your acceptance of these Terms, as modified. You agree that Company is permitted to access and use any other information provided by you to perform the Services, including any Personally Identifiable Information (as defined in the Company’s Privacy Policy), and, if necessary, to access such information to obtain contact information in order to provide notifications relating to the Services provided to you by the Company.

1. Licenses and Website Access: For purposes of these Terms, “Content” includes any text, message, data, photograph, image, graphic, information, audio/video files or other material on the Website and the related trademarks, service marks, logos, insignias and other intellectual property contained therein. As between you and the Company, the Content on the Website, is owned by or licensed to the Company, subject to copyright and other intellectual property rights under the law. Without limitation, this includes the HEATHER JAMES brand name (inclusive of “HEATHER JAMES,” and variations thereof), as well as any and all Company trademarks and service marks used on or by the Website. Content also includes the “look and feel” of the Website (including its design, layout, color combinations, button shapes and other graphical elements). Content on the Website is provided to you “as is” for your information in connection with your use of the Services. Company grants you a limited, revocable, nonexclusive, non-transferable license to access the Website and Content and utilize certain Services for your own personal use only, and not to modify the Website, or any portion thereof (other than as expressly permitted by Company). Except as expressly stated in the Terms, you are not granted any right or license, by implication, estoppel, or otherwise, in or to any patent, service mark, trademark, copyright, or proprietary right of the Company or any third party, in connection with your use of the Website and any Content provided by Company or any third party on the Website. Elements of the Website, including page headers, custom graphics, logos, sounds, images and button icons, are protected by trade dress and other state and federal laws and may not be copied or imitated in whole or in part. Violation of these Terms, including without limitation modification or use of Content on the Website for any purpose other than those permitted in this Agreement, shall result in the automatic termination, without notice to you, of your license to access the Website and utilize the Services, and also may constitute the infringement of Company’s copyright, service mark, trademark and/or other rights. You shall not attempt to access any other Company’s systems, programs or data that are not made available for public use.

2. Restrictions on Use of Website: You agree that in connection with your use of the Website, you will not do any of the following:

1. 1. 1. 1. Circumvent, disable or otherwise interfere with security-related features of the Website or features that prevent or restrict use or copying of any Content, or enforce limitations on use of the Website or the Content.
         2. Copy, reproduce, republish, upload, post, transmit, or distribute in any way any Content without Company’s written permission, other than as expressly allowed by Company.
         3. Transmit any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature.
         4. Use any data scraping, mining, robots, spiders, or similar data gathering and extraction methods within the Website or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents without the Company’s prior written consent.
         5. Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Website or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Website.
         6. Use any meta tags or any other “hidden text” utilizing the Company’s name or any substantially similar name without the Company’s express written consent.
         7. Request more than 500 pages of the Website in any twenty-four hour period, whether alone or acting in concert with a group of individuals.
         8. Request more than 10 media or other documents available for download from the Website in any twenty-four hour period, whether alone or acting in concert with a group of individuals.
         9. Take any action that imposes or may impose (in Company’s sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure.
         10. Duplicate or create multiple user accounts in an attempt to circumvent our security and privacy measures and policies.
         11. “Frame” or “mirror” any part of the Website.
         12. Provide to the Company false or incorrect Personally Identifiable Information (as defined in the Company’s Privacy Policy).
         13. Remove any copyright, trademark or other proprietary rights notices contained on the Website.
         14. Use the Website or Content for any unlawful purpose.

3. Creating an Account: You may browse the Website and view certain content without registering, but as a condition to using certain aspects of the Website, you may be required to register with Website and select a password and screen name (“User ID“). You shall provide Company with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms, which may result in immediate termination of your Website account. You shall not (i) select or use as a User ID a name of another person with the intent to impersonate that person; (ii) use as a User ID a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a User ID a name that is otherwise illegal, offensive, vulgar or obscene. Company reserves the right to refuse registration, cancel a User ID or deny your access to the Website in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your Website password. You shall never use another user’s account without such other user’s express written permission. You will immediately notify Company in writing of any unauthorized use of your account, or other account related security breach of which you are aware. Please read our Privacy Policy, which describes the Personally Identifiable Information we collect, use, disclose, manage and store. You will be responsible for the confidentiality and use of your User ID, and for any and all activities (including purchases, as applicable) that are conducted through your account, and agree not to transfer or resell your use of or access to the Website to any third party. We are not liable for any harm caused or related to the theft or misappropriation of your User ID, disclosure of your User ID, or your authorization of anyone else to use your User ID. If you have reason to believe that your account with us is no longer secure, you must promptly change your password by visiting Website and immediately notify us of the problem by emailing us at [email protected].

4. Third Party Websites: The Website may contain links to other websites, including without limitation websites of service providers, and educational institutions which are completely independent of this Website and are provided to you only as a convenience. Company makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in, or the products or services provided or sold by, any such third party site. Your linking to any other websites is at your own risk and you acknowledge that you bear all risks associated with access to and use of any content, information, data, advertising, products, services, or materials on or available through such websites, and your access to and use of such websites is subject to the terms and conditions of use applicable to such websites. You agree that the Company is not responsible for any loss or damage of any sort you may incur from dealing with such a third party website(s). Accordingly, we strongly encourage you to become familiar with the terms of use and practices of any linked site.

YOU AGREE THAT YOUR USE OF OTHER INTERNET WEBSITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, SERVICES, OR ANY OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.

5. Limitations on Services: You acknowledge that Company may establish limits concerning use of the Services and reserves the right at any time to modify or discontinue the Services (or any part thereof), with or without notice, including but not limited to the functionality or hours of availability, the equipment needed for its access or use, or its pricing. Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

YOU ACKNOWLEDGE THAT COMPANY IS NOT RESPONSIBLE OR LIABLE FOR YOUR USE OF ANY OF THE SERVICES. You acknowledge that any limitations on Services will not be cause for a refund for any of Company’s Services or products.

6. Termination of Services: You agree that Company, in its sole discretion, has the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Website immediately and without notice, for any reason, including, without limitation, if Company believes that you have acted inconsistently with the letter or spirit of the Terms. Further, you agree that Company shall not be liable to you or any third party for any termination of your access to the Website, and you agree not to attempt to use the Website after said termination.

7. Privacy and Information Disclosure: You acknowledge and agree that Company’s Privacy Policy, as contained on this Website, is incorporated herein by this reference and is thereby a part of these Terms.

8. Ownership:

1. 1. 1. 1. Website Content. This Website is owned and operated by the Company. All right, title and interest in and to the Content provided on this Website, including but not limited to information, documents, logos, graphics, sounds, page headers, button icons, service marks, trade dress, trademarks and images are owned either by Company or by third party authors, developers, or vendors and licensed to the Company (“Third Party Providers“). The Content and materials provided on or through the Website are intended to educate and inform you about the products and services offered or described on the Website. Except as otherwise expressly provided by Company, none of the Content may be republished, reproduced, uploaded, displayed, posted, distributed, or transmitted, in any way, including without limitation on any other website or in a networked computer environment, and nothing on this Website shall be construed to confer any license under any of Company’s intellectual property rights, whether by implication, estoppel, or otherwise. Subject to your compliance with these Terms, you may download copies of any Content required to be downloaded in connection with the Services you desire, and you may use such downloaded Content solely for your personal, non-commercial use, provided that you retain all copyright and other proprietary notices contained on such documents. Company cannot guarantee that technical difficulties will not occur during the download of the Content or that the Content will download successfully. You further acknowledge that you do not acquire any ownership rights by using the Website or the Content. Any rights not expressly granted herein to you are hereby reserved by Company.
         2. Copyrights. All Website design, graphics, and the selection and arrangement thereof, are owned by the Company. Copyright © 2019, HEATHER JAMES ALL RIGHTS RESERVED.
         3. Trademarks. The Company’s logo, and all images and text, and all page headers, custom graphics and button icons are service marks, trademarks and/or trade dress of Company. All other trademarks, service marks, product names and company names or logos cited herein are the property of their respective owners. The trademarks, logos, and service marks displayed on the Website (collectively the “Trademarks“) are the registered and unregistered trademarks of Company, Company’s licensors and suppliers, and others. Nothing contained on the Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks without the express written permission of Company, Company’s licensors or suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Company will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.

9. Making Purchases. If you wish to purchase products or services described on the Website (each such purchase, a “Transaction“), you will be asked to supply certain information applicable to your Transaction. Each such Transaction shall be subject to Company’s Terms and Conditions of Sale. Any information provided to Company in connection with a Transaction will be treated by Company in the manner described in our Privacy Policy. You will also be responsible for paying any applicable taxes relating to your purchases. The sale of certain products and services may be regulated by certain state, county and city laws or regulations. You acknowledge that complying with such laws is your responsibility, and YOU AGREE NOT TO HOLD US LIABLE FOR YOUR FAILURE TO COMPLY WITH ANY LAW OR COMPANY’S FAILURE TO NOTIFY YOU OF, OR PROPERLY APPLY, ANY LAW. You represent and warrant that all information you provide in connection with a Transaction, including but not limited to all information concerning your name, address, and other identifying information of any nature will be true, complete and correct, and that you will update all information as it changes. You further agree that you will not attempt to conceal your identity by using multiple Internet Protocol (“IP“) addresses or email addresses to use or to purchase Company products or services. You grant Company the right to provide third parties with any information you submit for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction. 

10. Pricing and Fees. The Company will provide pricing and fees for products and services only upon inquiry by you. All applicable taxes which, as now existing or implemented by future law Company may be required to pay or collect with respect to any Transaction, except for Company’s taxes incident to receipt of payment from you, shall be paid by you.

11. Digital Millennium Copyright Act. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA“) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

1. 1. 1. 1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
         2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
         3. 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 the service provider to locate the material;
         4. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
         5. 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
         6. 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.

            The Company’s designated Copyright Agent to receive notifications of claimed infringement is: Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, 11400 W. Olympic Blvd., 9th Floor, Los Angeles, California 90064, Attn: Michael W. Rabkin, Esq. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to the Company’s customer service at [email protected]. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.

12. Warranty Matters and Liability of Company.
    1. 1. 1. Disclaimer of Warranties. Except as expressly provided herein or in any Additional Terms, no representations or warranties, express or implied, are given regarding the Goods, Services or your use of the Website. Company’s liability is limited only to amounts actually paid by you to the Company. If you are not satisfied with our service please contact our customer service department at [email protected]. Without limiting the generality of the foregoing, you agree that use of the website, the Content and the Services, including without limitation the purchase of Goods, is entirely at your own risk. Company assumes no responsibility for errors or omissions in the Services, the Website or its Content, or any third party website.

             The website, the Services, and the Goods are provided on an “as is” or “as available” basis, without any warranties of any kind. Company does not warrant the quality, accuracy, functionality, performance, merchantability, security, reliability, completeness, or timeliness of the Website, the Content, the Services, the Goods or any other information, text, graphics, links or other items contained within the Website’s Content or any third party website, or any other goods or services sold via the Services.

             To the fullest extent permitted by law company disclaims any warranties for and does not assume any responsibility for any incompleteness, errors, security, reliability, timeliness, viruses, harmful components or effects, vulnerabilities, bugs, problems, omissions, inaccuracies or other limitations in, or interruptions in the operation of the website, the content, the services, the Services or any other information, text, graphics, links or other items contained within the Website’s Content or any third party website, or any other Services or Goods received or purchased through or advertised on the Website, or accessed through any links on the Website.

             All express and implied warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights are expressly disclaimed to the fullest extent permitted by law. Company makes no commitment to update the information, including the Services and Goods contained in, and sold through, the website. You acknowledge that you are responsible for obtaining and maintaining all telephone, computer hardware and/or other equipment needed to access and use this website, and all charges related thereto. Your use of this website, the content and/or any of the Services or Goods or other products provided through the Website or any third party website are entirely done so at your own risk.

             MORE SPECIFICALLY WITH RESPECT TO THE GOODS AND OTHER PRODUCTS SOLD VIA THE SERVICES (OR OTHERWISE ON OR THROUGH THE WEBSITE OR ANY THIRD PARTY WEBSITE LINKED FROM THE WEBSITE), BY PLACING AN ORDER WITH COMPANY, YOU HEREBY AFFIRM THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF SALE, WHICH GOVERN ALL SUCH TRANSACTIONS.

          2. Changes, Misprints, Errors And Cancellations. Subject to applicable law, we: (i) reserve the right to change the Goods and Services advertised or offered for sale through the Website, the prices or specifications of such Goods and Services, and any promotional offers and any other Content at any time and from time to time without any notice or liability to you or any other person; (ii) cannot guarantee that Goods or Services advertised or offered for sale on the Website will be available when ordered or thereafter; (iii) reserve the right to limit quantities sold or made available for sale; (iii) do not warrant that Content (including without limitation product descriptions or photographs) are accurate, complete, reliable, current or error-free; and (iv) reserve the right to cancel, to terminate or not to process orders (including accepted Transactions) where the price or other material information on the Website is inaccurate or when we recognize abuse of our policies. If we do not process an order for such reason, we will advise you that the order has been cancelled and will either not charge you or will apply credit to the payment type used in the order.
13. Limitations of Liability:

1. 1. 1. 1. Under no circumstances shall Company, its affiliates, and their respective officers, directors, advisory board members, employees, shareholders, members, managers, licensors, suppliers, advertisers, sponsors, attorneys or agents, or their respective successors or assigns (collectively, “Company Related Parties”), be liable to you or any third party under any contract, negligence, strict liability or other theory arising out of or relating in any way to the Goods, the Website, the Services, and/or any Content, or any other linked website or any product or service purchased through the Website or any other site, for any direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if company has been advised of the possibility of such damages), including without limitation, damages for loss of business, loss of data or lost profits) resulting from any aspect of your use of any Goods, the Website or the Services. Such limitation shall also apply with respect to damages incurred by reason of other services or products received through or advertised in connection with the Website or the Services or any links on the Website, as well as by reason of any information received through or advertised in connection with the Website or the Services or any links on the Website. These limitations shall apply to the fullest extent permitted by law. If your use of Content from this Website results in the need for servicing, repair or correction of equipment or data, you assume any costs thereof. To the extent that the foregoing limitations on liability above are limited or restricted by law, your sole and exclusive remedy and Company’s absolute limit of liability in connection with any lawsuit, claim, or cause whatsoever directly or indirectly relating to or arising out of or relating in any way to the Website, the Goods, the Services, and/or any Content, whether based on contract, tort or any other legal theory of recovery, shall in all cases be strictly limited to the price paid by you directly to Company in connection with the applicable aspect from which such lawsuit, claim, or cause arises.

1. 1. 1. 1. Company shall not be liable for any failure to perform in accordance with a Transaction (or any other order for goods or services), including, without limitation, failure to deliver the Goods caused for any reason, in whole or in part, beyond Company’s control, including, but not limited to, production schedules of Company’s suppliers, unavailability of materials, labor disturbances, acts of God, earthquake, fire, flood, weather, terrorism or transportation difficulties.

14. Indemnity and Customer Warranty. You agree to defend, indemnify and hold Company and Company Related Parties harmless from any claim, action, loss, expense, or demand, including reasonable attorneys’ fees and court costs, made by any third party due to or arising out of your use of the Website, its Content and/or the Services, your violation of the Company’s Terms, Terms and Conditions of Sale, and/or Privacy Policy, your breach of any of the representations and warranties herein, or any Transaction.

15. Essential Basis of Bargain. YOU ACKNOWLEDGE THAT COMPANY HAS SET ITS PRICES AND PROVIDED ACCESS TO OR USE OF THE WEBSITE, THE SERVICES, DOCUMENTS OR TOOLS AND/OR ANY CONTENT IN RELIANCE OF THE LIMITATIONS OF LIABILITY, THE DISCLAIMERS OF WARRANTIES AND DAMAGES, THE GENERAL RELEASE, AND THE INDEMNITY SET FORTH HEREIN IN SECTIONS 13-14, AND THAT THE SAME FORM AN ESSENTIAL BASIS UPON WHICH THESE TERMS ARE ESTABLISHED, AND UPON WHICH COMPANY HAS PROVIDED TO YOU ACCESS TO OR USE OF THE WEBSITE, THE PRODUCTS AND/OR CONTENT. YOU AGREE THAT THE LIMITATIONS OF LIABILITY, THE DISCLAIMERS OF WARRANTIES AND DAMAGES, THE GENERAL RELEASE, AND THE INDEMNITY SET FORTH HEREIN IN SECTIONS 13-15 WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

16. Technical Support Issues: If you encounter a technical problem when attempting to print or otherwise access your completed form, or some other problem you may encounter in attempting to utilize our Services and/or Content, Company’s customer service representatives may be able to assist you with your problem.

            If you contact Company’s customer service representatives and request that a customer service representative remotely control your computer in order to try to resolve your technical problem, you acknowledge and accept that Company has no obligation to do so, and, if it does so, shall not be liable for any technical problems that may persist or arise with your computer after doing so.

17. Inaccuracy. From time to time there may be information on our Website that contains typographical errors, inaccuracies, or omissions. We may correct errors, inaccuracies, or omissions and change or update information at any time without notice. We apologize for any inconvenience this may cause you.

18. Ability to Accept Terms of Service. You affirm that you are 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Website Terms, and to abide by and comply with these Website Terms. If you are under 18 years of age, then please do not use the Website. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.

19. General information: The Terms, together with the Additional Terms (including the Terms and Conditions of Sale), the Privacy Policy, and each other agreement or policy incorporated herein, constitute the entire agreement between you and Company regarding the subject matter herein, and supersede any prior agreements between you and Company. The failure of Company to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. The Terms do not limit any rights that Company may have under trade secret, copyright, patent, trademark or other laws. The employees of Company are not authorized to make modifications to the Terms, or to make any additional representations, commitments, or warranties binding on Company, except in a writing signed by an authorized officer of Company. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.

You warrant, represent and agree that, by accessing and/or using of the Website, its Content and/or the Services, you (i) do so with knowledge of any and all rights that you may have with respect to the provisions of these Terms, (ii) have carefully read and considered these Terms and fully understand its contents and the significance of its contents, (iii) are consenting to these Terms of your own informed and free will, based upon such party’s own judgment and without any coercion or fear of retaliation, and (iv) you have been afforded the opportunity to obtain independent legal advice with respect to these Terms.

The Terms and the relationship between you and Company shall be governed by the laws of the State of California without regard to any conflicts of laws principles. Further, you agree that all actions or proceedings arising in connection with your use of the Website and these Terms shall be tried and litigated exclusively in the State and Federal courts located in the County of Los Angeles, State of California. The aforementioned choice of venue is intended to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between you and the Company with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. You hereby waive any right you may have to assert the doctrine of forum non convenience or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulate that the State and Federal courts located in the County of Los Angeles, State of California shall have in personam jurisdiction and venue over you for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to your use of the Website or these Terms. You hereby authorize and accept service of process sufficient for personal jurisdiction in any action against you as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Website, the Content, the Services and/or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. You also agree that the Terms shall not be construed against the drafting party, i.e., Company.

EACH OF THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING BUT NOT LIMITED TO ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THESE TERMS. FURTHER, EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF EITHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT IN THE EVENT OF SUCH LITIGATION SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH OF THE PARTIES ACKNOWLEDGES THAT THIS SECTION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY ENTERING INTO THIS AGREEMENT.

YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Further, unless both you and Company agree otherwise, the trier of fact may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

In addition, in the event of a breach of these Terms by you, the Company will, in addition to all other remedies available to it, be entitled to equitable relief by way of a temporary restraining order, or preliminary or permanent injunction and any other legal or equitable remedies. This provision will not be construed as a waiver of the rights which the Company may have for damages under these Terms or otherwise, and all of the Company’s rights and remedies will be unrestricted.

If any provision of these Terms as applied to any party or to any circumstance shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall in no way affect any other provision of these Terms, the application of any such provision in any other circumstance, or the validity or enforceability of these Terms, and any provision that is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.

20. Questions: If you have any questions, comments or complaints regarding these Terms or the Website, feel free to contact us at [email protected].

21. Notice for California Under California Civil Code Section 1789.3, California users of the Website are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Last Updated: May 7, 2019

[1] Drafted a few years ago