IMPORTANT NOTICE: DISPUTES ABOUT THESE TERMS AND THE FoundEmCheating SERVICES ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE "MANDATORY ARBITRATION AND CLASS ACTION WAIVER" SECTION BELOW.
You acknowledge and agree that, by accessing or using the Services or by uploading or posting any User Content (as defined below) to the Services, you, your heirs, and assigns (collectively, "you") are indicating that you have read, understand, and agree to be bound by these Terms. If you do not agree to these Terms, then you have no right to access or use the Services.
We may, from time to time, modify these Terms. Please check this page periodically for updates. Any changes will be posted on the Services. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services. The updated Terms will take effect after their posting and will apply on a going-forward basis, unless otherwise provided in a notice to you, and except as provided in the Mandatory Arbitration and Class Action Waiver section of these Terms. Your continued use of the Services after any such update constitutes your binding acceptance of such changes.
1. ELIGIBILITY AND SCOPE
1.1 Eligibility. To use the Services you must be, and represent and warrant that you are, of legal age and competence. By using the Services on behalf of any third party, you are representing to us that you are an authorized representative of that third party and that your use of the Services constitutes that third party's acceptance of these Terms. If you have been previously prohibited from accessing the Services by FoundEmCheating, you are not permitted to access the Services.
1.2 Use Outside the United States of America. The Services are controlled and offered by FoundEmCheating from the United States of America. FoundEmCheating makes no representations that the Services are appropriate for use in other locations. Those who access or use the Services from other locations do so at their own risk and are responsible for compliance with local law.
2. OUR PROPRIETARY RIGHTS
2.1 Intellectual Property Rights. The Services are owned and operated by FoundEmCheating and contain material which is derived in whole or in part from material supplied by FoundEmCheating and its partners, as well as other sources, and is protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Services are also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by FoundEmCheating and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of FoundEmCheating and such others. You agree to protect the proprietary rights of FoundEmCheating and all others having rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by FoundEmCheating or its suppliers and licensors of content or otherwise ("Suppliers") to protect their and others' contractual, statutory, and common law rights in the Services. You agree to notify FoundEmCheating immediately upon becoming aware of any unauthorized access or use of the Services by any individual or entity or of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services shall, as between you and FoundEmCheating, at all times be and remain the sole and exclusive property of FoundEmCheating.
2.2 Use of Marks. You may not use any of FoundEmCheating's trademarks, trade names, service marks, copyrights, or logos in any manner which creates the impression that such items belong to or are associated with you or, except as otherwise provided herein, are used with FoundEmCheating's consent, and you acknowledge that you have no ownership rights in or to any such items.
3. USER CONTENT AND FEEDBACK
3.1 User Content. The Services may enable you to submit, post, upload, or otherwise make available (collectively, "post") content such as video clips, photographs, reviews, public messages, ideas, comments and other content (collectively, "User Content") that may or may not be viewable by other users. You acknowledge and agree that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom the User Content originated. You further agree that you have all required rights to post such User Content without violation of any third-party rights.
3.2 Our License to User Content. When you post User Content on or through the Services, you grant FoundEmCheating a world-wide, perpetual, irrevocable, royalty-free, non-exclusive, and sub-licenseable license to use, copy, distribute, reproduce, modify, edit, adapt, publicly perform, publicly display, translate, create derivative works from, sell, lease, transmit, disassemble, and publish such User Content, in whole or in part, in any format or medium now known or developed in the future, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You acknowledge and agree that your user name may be associated with any User Content that you post.
3.3 User Content Representations. You represent and warrant to us that you own or otherwise control all rights to any User Content you post on or through the Services. You agree that you will indemnify, defend, and hold harmless FoundEmCheating for all claims resulting from User Content you post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
3.4 User Content Review. You acknowledge and agree that FoundEmCheating and its designees may or may not, at FoundEmCheating's discretion, pre-screen User Content before its appearance on the Services, but that FoundEmCheating has no obligation to do so. You further acknowledge and agree that FoundEmCheating reserves the right (but does not assume the obligation) in its sole discretion to reject, move, edit or remove any User Content that is contributed to the Services. Without limiting the foregoing, FoundEmCheating and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable in FoundEmCheating ‘s sole discretion. You acknowledge and agree that FoundEmCheating does not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content. You understand that by using the Services, you may be exposed to User Content that you may consider offensive or objectionable. You also acknowledge that FoundEmCheating is a provider of an interactive computing service as set forth the Communications Decency Act, 47 U.S.C. § 230. FoundEmCheating expressly reserves its rights to not be treated as the publisher or speaker of any information provided by another information content provider on or through the Services.
3.5 User Feedback. Any information provided to us by e-mail or other mediums, including but not limited to feedback, data, answers, questions, comments, suggestions, plans, ideas or the like, shall be deemed to be non-confidential, and we assume no obligation to protect such information from disclosure. The submission of such information to us shall in no way prevent the Purchase, manufacture or use of similar products, services, plans and ideas by us for any purpose whatsoever, and we shall be free to reproduce, use, disclose and distribute the information to others without restriction.
4. LICENSE AND PROHIBITED CONDUCT
4.1 Your License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to access and use the Services for your own personal use consistent with the Terms.
4.2 Prohibited Uses. Use of the Services for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly prohibited. Without limitation, you will not:
5. LEGAL COMPLIANCE
6. TERMS OF SALE
To the extent that you make a Purchase of products offered by FoundEmCheating on the Services, such Purchase will be subject to separate terms of sale presented on the website or online service where the Purchase is made.
7. WARRANTIES AND DISCLAIMERS
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
8. LIMITATION OF LIABILITY
IN NO EVENT WILL FoundEmCheating, ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, OR REPRESENTATIVES (AND ALL SUCCESSORS AND ASSIGNS OF ANY OF THE FOREGOING) (COLLECTIVELY "FoundEmCheating" FOR PURPOSES OF THIS SECTION) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM THE PERFORMANCE, USE OF OR THE INABILITY TO USE THE SERVICES OR PRODUCTS, EVEN IF FoundEmCheating HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, VIOLATION OF STATUTE OR OTHERWISE. FoundEmCheating WILL NOT BE LIABLE FOR THE COST OF REPLACEMENT PRODUCTS, LOSS OF REVENUE OR LOSS OF GOOD WILL. IN ANY EVENT, OUR AGGREGATE LIABILITY WILL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT OR SERVICE TO WHICH THE CLAIM RELATES OR, IF THE CLAIM DOES NOT RELATE TO A PRODUCT OR SERVICE, $100.
FoundEmCheating DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE, AND FoundEmCheating WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. FoundEmCheating WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
If you are a California resident, you hereby waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." This release includes the criminal acts of others.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that FoundEmCheating shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on or through the Services.
11. THIRD-PARTY LINKS AND SERVICES
12. MODIFICATION AND TERMINATION
12.1 Modification of Services. FoundEmCheating reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), with or without notice. You agree that FoundEmCheating shall not be liable to you or any third party for any modification, suspension or discontinuance of the Services.
12.2 Termination. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion, deny you access to all or part of the Services at any time for any or no reason at all, with or without notice to you. Grounds for such termination shall include, but not be limited to, (a) breaches or violations of these Terms or other agreements, (b) requests by law enforcement or government agencies, (c) discontinuance or material modification of the Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity (f) activities related to protecting the rights, property or safety of FoundEmCheating, its agents and affiliates, its users and the public; or (g) if you provide any information, including registration information, that is false, inaccurate, out-of-date, or incomplete. If we terminate for no reason your right to access the Services, we will fulfill our obligations to you related to any order outstanding at the time of termination. If you terminate your account, you will remain liable under these Terms for any Purchase made prior to termination. If we terminate your right to access the Services, these Terms will terminate and all rights you have to access the Services will immediately terminate; however, certain provisions of these Terms will still apply post termination, including without limitation, the Mandatory Arbitration and Class Action Waiver provisions. Termination of your account may also include, at FoundEmCheating's sole discretion, the deletion of your account and/or User Content.
13. MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
EXCEPT WHERE PROHIBITED BY LAW, YOU AND THE COMPANY AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND THE COMPANY (including disputes against any agent employee, subsidiary, affiliate, predecessor in interest, successor, or assign of the other), ITS PARENTS, AFFILIATES, SUBSIDIARIES OR RELATED COMPANIES, relating to our Websites, the SERVICES AND MATERIALS published by the Company on or through the Websites, any transaction or relationship between us resulting from your use of our Websites, communications between us, the information provided in connection with our background information services, and your use of our background information services, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A DELAWARE STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT ("FAA").
The following procedures shall apply:
In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail and shall describe in such notice, with reasonable particularity, the nature and basis of such claim and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth herein. The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA") and will be administered by the AAA. If the AAA is unavailable or refuses to arbitrate the parties' dispute for any reason, the arbitration shall be administered and conducted by a widely-recognized arbitration organization that is mutually agreeable to the parties, but neither party shall unreasonably withhold their consent. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879. The arbitration shall take place in Miami, FL, but may proceed telephonically in the event the total amount of the claim does not exceed $2,500 U.S. dollars (if the claimant so chooses).
BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award.
Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this agreement. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties' agreement to arbitrate shall be null and void. YOU UNDERSTAND THAT BY AGREEING TO THIS ARBITRATION AGREEMENT, WHICH CONTAINS THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST THE COMPANY, ITS AGENTS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND/OR ASSIGNS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. IF YOU DO NOT AGREE TO THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, YOU MUST TELL US IN WRITING AND NOT USE OUR WEBSITES.
14. Controlling Law and Severability
These Terms will be interpreted in accordance with the laws of the State of Delaware, without regard to its conflict-of-law provisions. If any part of these Terms is considered invalid, it shall be enforced as effectively as possible while all other provisions remain in full effect.
15. GENERAL TERMS
15.1 Force Majeure. Under no circumstances shall FoundEmCheating or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
15.2 No Waiver; Severability. No waiver of any term of these Terms will be binding unless in writing, no waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and the failure of FoundEmCheating to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties' intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
15.3 Third-Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
15.4 Miscellaneous. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between you and FoundEmCheating and govern your use of the Services, Services and products provided by FoundEmCheating, and supersede any prior agreements between you and FoundEmCheating on the subject matter. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by FoundEmCheating without restriction. These Terms bind and inure to the benefit of each party and the party's successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of FoundEmCheating. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. These Terms will not be construed against the drafter. "Include(s)" or "including" means, respectively, "include(s) without limitation" or "including without limitation", unless expressly stated otherwise. If you are using the Services for or on behalf of the U.S. government, your license rights do not exceed those granted to non-government consumers. The section titles in these Terms are for convenience only and have no legal or contractual effect.
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