These Terms of Service (this “Agreement”) concern the online or digital properties, products and services of Forum Brands, Inc. (“Forum”) described further below; and constitute a legally binding contract between you (together with any person helping you visit, access, register with or use any of those online or digital properties, products or services, “you” or “your”) and Forum (with you and Forum sometimes referred to herein each as a “Party” and together as the “Parties”). The online or digital properties, products and services which are the subject of this Agreement include:
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Please read this Agreement carefully before accessing or using the Site or the Services because it constitutes a legally binding contract between you and Forum that applies to each and every Site and Service, even if you only visit, access, register with or use only one Site or Service. THIS INCLUDES THE “DISPUTE RESOLUTION” CLAUSE CONTAINED IN THIS AGREEMENT, WHICH PROVIDES FOR BINDING ARBITRATION AND WAIVERS OF JURY TRIALS AND CLASS ACTIONS.
You are automatically accepting and agreeing to the most-recent version of this Agreement whenever you create, register with or log into an account on or through the Site. Similarly, you are automatically accepting and agreeing to the most-recent version of this Agreement whenever you visit, access, or use the Site or the Services; and your continuing visit, access, or use of any of the forgoing reaffirms your acceptance and agreement in each instance.
If you do not accept and agree to this Agreement in its entirety, then you are strictly prohibited from visiting, accessing, or using the Site or the Services.
Forum may supplement, amend or otherwise modify this Agreement at any time. Such modifications will be posted on this or another page of the Site and as Forum deems appropriate in its sole discretion, and shall be deemed effective as of their stated effective or modification date. It is your responsibility to carefully review this Agreement each time you visit, access, or use the Site or the Service.
Eligibility.The Site and the Services are offered only to users eighteen (18) years of age or older, or otherwise the age of majority in their respective jurisdictions, and who have accepted this Agreement. By visiting, accessing, or using the Site or the Services, you represent and warrant to Forum that you meet these eligibility requirements. You agree to comply with all applicable laws for visiting, accessing, and using the Site and the Services, and for purchasing and using any products or services on or through the Site, and you may only use them for lawful purposes.
Privacy.
Privacy Policy.Forum respects the privacy of others. Forum’s policies concerning the collection and use of your personal information in connection with the Site are set forth in Forum’s Privacy Policy, which you should carefully review each time you visit, access, or use the Site or the Services.
Express Consent to Privacy Policy.You hereby expressly consent to Forum and its affiliated companies collecting and using information about you (including your personal and non-personal information) as disclosed in Forum’s Privacy Policy.
Description of Services. The following further describes the Services. The Services include the ability to learn more about Forum’s capabilities to impact consumer brands and initiate contact regarding a potential acquisition through the Site. Forum reserves the right, but not the obligation, to change or otherwise alter the operation, features and content of the Services as Forum sees fit in its sole discretion from time-to-time.
Your Devices.Certain portions of the Site or the Services may be configured for, and Forum may offer the Site or the Services through, certain televisions, computers, tablets, smart phones or other electronic devices (“Device(s)”); and this Agreement shall apply with equal force and measure to your visit, access, and use of the Site, and/or the Services through such Devices. You are responsible for obtaining and updating the Device, software, operating system, carrier and network access necessary to properly visit, access, register with and use the Site and the Services. Forum does not guarantee that the Site, the Services or any portions thereof will function on or in connection with any particular Device, software, operating system, carrier or network. If you visit, access, or use the Site or the Services through a particular Device, then you hereby acknowledge and agree that information about your use of the Site or the Services through that Device or its carrier or network (such as, by way of example only, the identity of your Device, or your Device’s carrier or network) may be communicated to Forum and/or certain third parties (such as, by way of example only, your Device’s carrier or network). All or any part of the voice, message and data fees, rates, charges and taxes of your Device’s carrier or network, or another third party, may apply to your visit, access, and/or use of the Site and/or the Services. Forum is not responsible for, and you further accept full responsibility for, all Device carrier and network fees, rates, charges and taxes which may apply, if any.
Ownership.The Site, the Services and all elements and derivatives of the foregoing (including, without limitation, all content, information, source codes, object codes, data, instructions, documentation and expressions), as well as all copyrights, trademarks, trade secrets and other intellectual properties of the foregoing, are owned, licensed or permissibly used by Forum. In no event shall you have or retain any rights, titles or interests in or to the foregoing other than those limited rights expressly granted to you under this Agreement. No rights or permissions granted to you under this Agreement are coupled with an interest. Nothing contained in this Agreement shall be construed as a waiver or limitation of Forum’s or its licensors’ respective rights and remedies under applicable law.
Rights, Permissions, and Consents.
License of the Site. Subject to the terms and conditions of this Agreement, Forum grants you a limited, non-exclusive, personal, freely-revocable, non-transferable and non-sub-licensable license to access and view the various publicly displayed pages of the Site, and to view the information and content found thereon. Your unauthorized use of the Site or the Services, or any breach by you of this Agreement, automatically terminates this license.
License of the Services.Subject to the terms and conditions of this Agreement, Forum grants you a limited, non-exclusive, personal, freely-revocable, non-transferable and non-sub-licensable license to access and use the Services made available on or through the Site, for your personal, non-commercial use only, with such use being limited to the country or other jurisdiction in which you have established your account with Forum, and with such use being further limited to those geographic areas where Forum offers the applicable Services. For the avoidance of doubt, the foregoing license does not grant you any right to reproduce (other than Forum-permitted downloads, if any), publicly perform, publicly display, publish, distribute, transmit or create derivatives of the Services or any elements or derivatives thereof (including, without limitation, or any content, information, source codes, object codes, data or documentation found thereon or therein, in whole or in part), and you are prohibited from engaging in any such activities. For the further avoidance of doubt, Forum may, from time-to-time, conduct certain audit, repair, modification or testing activities in relation to the Site and/or the Services for purposes of developing, operating, improving, researching, troubleshooting, repairing, updating or modifying the foregoing; and Forum reserves the right, but not the obligation, to perform such activities without notice to you, and to exclude you from those activities without notice to you. In the event of the termination of this Agreement, you must remove from all of your Devices all downloads from the Services to those Devices upon such termination or cancellation or before the time of such sale or other transfer. Your unauthorized use of the Site or the Services, or any breach by you of this Agreement, automatically terminates this license.
License of User Materials.All names, photographs, information, communications and any other content that you submit to or publish on, through or in relation to the Site or the Services, including those which you submit to or publish on any online social media account (e.g., Facebook, Google Plus, Twitter, Instagram) that you own and link or otherwise associate with the Site, if any and as applicable, is hereinafter defined as the “User Materials.” You hereby grant Forum an irrevocable, non-exclusive, royalty-free, fully-paid, transferable, sub-licensable, perpetual and universe-wide license for Forum to host, store, reproduce, transmit, distribute, sell, resell, license, sublicense, market, modify, adapt, create derivative works, communicate, publish, syndicate, publicly perform, publicly display, archive and otherwise use and exploit all or any part of such User Materials and any elements and derivatives thereof in any manner, medium or form, whether now known or hereinafter devised, as Forum sees fit in its sole discretion.
Reservation of Rights.Nothing in this Agreement shall restrict or limit Forum’s rights, titles or interests in or to the Site, the Services, the User Materials or any elements or derivatives of the foregoing.
Warnings; Disclaimers.Please note that the User Materials might become the subject of public disclosure. Thus, Forum is not responsible for, and expressly disclaims any liability arising from or in connection with, its use of any User Materials in accordance with the terms and conditions of this Agreement.
Suspension or Termination of Service; Disclaimer.Forum has the right, but not the obligation, to suspend or terminate the function or existence of all or any part of the Site and/or the Services at any time, and without notice or recourse, as Forum deems advisable in its sole discretion. Forum shall not be liable to you or any third party(s) for any loss or damage that is caused by or arises from or in connection with any such suspensions or terminations (including, without limitation and by way of example only, refunds, lost profits, lost opportunities, monetary damages, disruption in or loss of service or loss of content).
Electronic Communications.
Express Consent. You hereby expressly consent to Forum and its affiliated companies sending you any type of electronic message (including, without limitation, advertising, telemarketing, or other commercial e-mails and text messages, informational e-mails or text messages, and electronic notices, updates, and newsletters), whether through the Site or Services, or by personal communication, e-mail, text message, automatic telephone dialing system, or artificial or prerecorded voice, online social media or any other electronic media means or forms. By giving such consent, you agree that no such communication shall violate the Telephone Consumer Protection Act, the CAN-SPAM Act, or any other applicable laws, rules or regulations. Voice, message, and data fees, rates, charges and/or taxes may apply to you, and you are responsible for payment of the same. You are not required to grant the foregoing consent as a condition for purchase or license of any other Forum products or services.
Opt-Out.You may opt-out of receiving any electronic messages from Forum as described in section 8(a) above any time by any reasonable means, including, without limitation and by way of example, by sending an e-mail to founders@forumbrands.com with a subject line of “Opt-Out of Electronic Communications.” You acknowledge that opting out of receiving any such communications may impact your receipt, the success, and/or the performance of all or any part of the Site, Forum’s products or services (including, without limitation, the Services) and/or your ability to receive certain messages and/or notifications from Forum.
Submissions.Forum does not accept unsolicited materials or ideas for content, and you acknowledge and agree that neither Forum nor any of Forum’s content providers are responsible or liable for the similarity of any information or content made available on, through or in relation to the Site or the Services.
Prohibited Activities. You shall not engage in any of the following activities at any time with respect to the Site or the Services: (a) the impersonation of any person or entity; (b) any act that infringes or otherwise violates the intellectual property, privacy or publicity rights of any person or entity (including, without limitation, the copyrights, trademarks, patents, and trade secrets held by Forum or its licensors with respect to the Site or the Services); (c) the reproduction of the Site or the Services or any communications, information or content found thereon or therein, in whole or in part, or the creation of any derivatives works of the foregoing (unless expressly authorized by Forum herein); (d) the publication of any content that is objectionable or illegal (including, without limitation, content that is indecent, obscene, infringing, an invasion of privacy, defamatory, disparaging, false, deceptive, misleading, untruthful, fraudulent, threatening or abusive); (e) the publication of a person’s or entity’s personal information or private facts without his/her/its prior written consent; (f) the publication of any machine, computer or randomly generated content; (g) supplying or publishing any information or statements on, through or in relation to the Site that is false, misleading, deceptive or incorrect; (h) any act intended or designed to drive traffic to or boost the search rankings of third-party websites, networks, platforms, servers or applications; (i) the systematic retrieval or copying of any information or content found on, through or in relation to the Site, the Services or their servers to directly or indirectly create or compile, in whole or in part, a collection, compilation, database or directory; (j) the use of any software, program, process, device, application or routine (including, by way of example only, robots, scrapers, spiders, viruses, spyware and malware) to monitor, copy, disrupt, damage, injure, interfere with or impermissibly access, in whole or in part, the Site, the Services or their servers; (k) any act that involves or concerns decrypting, security bypassing or circumventing, hacking, data mining, data scraping, data harvesting, reverse engineering, decompiling, disassembling, attempting to derive source code, modifying, copying or the like on, through or in relation to the Site, the Services or their servers; (l) any act that overloads, unreasonably disrupts, or unreasonably interferes with the infrastructure of the Site, the Services or their servers; (m) any act that gains or attempt to gain unauthorized access to computer systems, networks, information or materials on, through or in relation to the Site, the Services or their servers; or (n) any other act that Forum becomes aware of and believes in good faith is improper, illegal or harmful to the Site, their servers or any person, entity or property.
Links to Other Sites, Networks, Platforms and Servers.
Linked Technologies.The Site, the Services and/or any communications sent on, through or as a function thereof may contain links to third-party websites, networks, platforms, servers and/or applications, and, similarly, third-party websites, networks, platforms, servers, applications and/or communications may contain links to the Site and/or the Services (collectively, “Linked Technologies”). The Linked Technologies are not under the control of Forum. The Site, the Services and any such communications contain the outgoing links as a convenience to you, if for any purpose.
Disclaimer About Linked Technologies.Forum is not responsible for any information, content, goods, services, promotions, advertisements, programs, codes or other items which may be found on or excluded from the Linked Technologies (including, without limitation and by way of example only, malicious software, spyware programs, inaccurate information and illegal content). Forum does not make, nor has Forum made, any representations or warranties (express, implied or otherwise) concerning the terms of use or service, privacy policies, agreements, information, content, goods, services, promotions, advertisements, programs, codes or other items which may be found on or excluded from the Linked Technologies; nor shall the fact that the Site may link to or from any Linked Technologies constitute an affiliation with, association with or endorsement of such Linked Technologies or any information, content, goods, services, promotions, advertisements, programs, codes or other items which may be found on or excluded from such Linked Technologies. If you decide to access any Linked Technologies, then you do so at your own risk.
Take Down.Forum reserves the right, but not the obligation, to take down or otherwise exclude from the Site, without notice or recourse, any communications, names, photographs, information and/or content made or submitted by you or others on or through the Site which Forum believes at any time and in its sole discretion to be infringing or otherwise in violation of the proprietary, privacy or publicity rights of any person or entity; plagiarizing; defamatory; disparaging; embarrassing towards any person or entity; disclosing of confidential, private or personal information about or belonging to any person or entity; profane; indecent; obscene; racist, sexist, or otherwise derogatory in terms of race, nationality, religion, gender, gender identification, sexual orientation or otherwise; threatening; abusive; illegal; false; misleading; deceptive; inciting violence; hate speech; and/or a political attack on a group or individual.
Copyright Infringement.Forum respects the copyrights of others and prohibits users from uploading, posting, distributing, or otherwise transmitting any materials on or through the Site, or from engaging in any activities on or through the Site, which violate the copyrights of others. It is the policy of Forum to terminate, and Forum reserves the right to terminate without penalty or recourse, in appropriate circumstances the right of any subscriber and account holder (which may include, without limitation, you) to access and use the Site who is a repeat copyright infringer. And if Forum becomes aware that a user who is not a subscriber or account holder (which may also include, without limitation, you) is a repeat copyright infringer, then it is the policy of Forum to take reasonable steps within its power to terminate, and Forum reserves the right to terminate without penalty or recourse, in appropriate circumstances the right of that user to access and use the Site. The following procedures shall apply in the event that you or another person or entity alleges that the reproduction, public performance, public display, digital transmission or other use of a work found on the Site infringes your copyright, the copyright of said person or entity or any other intellectual property right owned by you or said person or entity. These procedures are intended to comply with 17 U.S.C. § 512 and any other applicable laws. By visiting, accessing, or using the Site, you are automatically agreeing to comply with the following procedures.
Takedown Notice (Materials). To report any materials on the Site that violate the copyrights of others, you must send Forum a written communication that includes substantially the following:
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 at a single online site are covered by a single notification, a representative list of such works at that site;
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;
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has 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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Takedown Notice (Information Location Tools).To report any information location tools (e.g., hyperlinks) on the Site that refer or link users to an online location containing infringing material or infringing activity, you must send Forum a written communication that includes substantially the following:
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 at a single online site are covered by a single notification, a representative list of such works at that site;
Identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link;
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has 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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Counter-Notice.If you believe that any material you have uploaded, posted, distributed, or otherwise transmitted on the Site has been removed by mistake or misidentification, and if you have the right to upload, post, distribute or otherwise transmit the material at issue, then you may send Forum a written communication that includes substantially the following:
A physical or electronic signature of the subscriber;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under 17 U.S.C. § 512(c)(1)(C) or an agent of such person.
Copyright Administrator. The foregoing written communications (i.e., the above-described takedown notice, and the above-described counter-notice) must be sent to the following designated agent of Forum:
A physical or electronic signature of the subscriber;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under 17 U.S.C. § 512(c)(1)(C) or an agent of such person.
User Representations, Warranties, and Covenants. You represent, warrant and covenant to Forum that: (a) you are a natural person and of eighteen (18) years of age or older, or otherwise the age of majority in your jurisdiction; (b) you have read and understand this Agreement in its entirety; (c) you have the full right and authority to enter into and abide by the terms and conditions of this Agreement; (d) you understand and acknowledge that by accepting this Agreement you are giving up certain legal rights and remedies; (e) you voluntarily accept and agree to, and will fully comply with, the terms and conditions of this Agreement; (f) you will not violate any applicable international, federal, state or local laws which may concern the Site, their servers, the Services or any information, communications or content found on or through them; (g) you are the exclusive owner of all rights, titles and interests in and to the User Materials (including, without limitation, all copyrights, trademarks, patents, trade secrets, rights of publicity and rights of privacy) and/or, if applicable, have secured all necessary rights and permissions from all subjects depicted in, and all persons and entities who contributed to, the User Materials to allow for your performance and grant of rights hereunder; (h) the User Materials are wholly original to you; (i) the User Materials do not and will not infringe upon or otherwise violate the proprietary, publicity or privacy rights of any person or entity; (j) the User Materials do not and will not defame, disparage, embarrass or disclose confidential, private or personal information about or belonging to any person or entity; (k) nothing contained in the User Materials is or will be, or contains or will contain, links to material that is, profane, indecent, obscene, threatening, abusive, illegal, false, misleading or any form of spam, malware, virus, bug, bot, spyware or other malicious or tracking technology; (l) Forum is not required to seek the permission of or compensate any third party(s) to exercise any of the rights granted by you under this Agreement; (m) no obligation, disability, agreement or adverse claim exists that may restrict your performance or grant of rights hereunder; (n) all information you provide to Forum in connection with your access or use of the Site and the Services is truthful and accurate; and (o) you are not listed on any United States government list of prohibited or restricted parties.
Disclaimers and Limitations.
General Disclaimer. Your visit, access, or use of the Site and/or any products or services made available to you on, through or in relation to the Site (including, without limitation, the Services) in any way is done at your own risk. The Site, those products and services, the success or performance of the Site or those products and services and all information, communications, content and features offered, marketed, sold, provided, licensed or made available on, through or in relation to the Site or those products and services are provided to you on an “as is,” “where is,” “as available,” and “with all faults” basis. Forum does not make, nor has Forum made, any representations or warranties of any kind or nature (whether direct or indirect, oral or written or express or implied) to you with respect to the Site, those products and services, any such information, communications, content and features or their success, performance, functionality, quality, completeness, accuracy, reliability, marketability or safety. Forum expressly disclaims any and all express warranties, implied warranties (including, without limitation, implied warranties of merchantability, fitness for a particular purpose, good faith and fair dealing, title, non-infringement, performance, functionality, quality, completeness, accuracy, reliability and safety) and warranties arising from conduct, course of dealing, custom and usage in trade with respect to the Site, those products and services, any such information, communications, content or features and their success, performance, functionality, quality, completeness, accuracy, reliability, marketability and safety. Forum does not make, nor has Forum made, any affirmation of fact, promise or warranty (express, implied or otherwise) relating to the Site, the Services, any such information, communications, content or features or their success, performance, functionality, quality, completeness, accuracy, reliability, marketability or safety that extends beyond the face of this Agreement or that has become any basis of any bargain.
Disclaimer About Products and Services. All descriptions, images, references, features, content, specifications, products and prices of any products or services offered on, through or in relation to the Site (including, without limitation, the Services) are subject to change at any time and without notice to you. The inclusion of any products or services on, through or in relation to the Site (including, without limitation, the Services) does not imply or warrant that they are or will be available. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the receipt, possession, use and sale of any product or service ordered or purchased on, through or in relation to the Site (including, without limitation, the Services). Forum reserves the right, with or without prior notice to you, to do any one or more of the following: (i) limit the available quantity of or discontinue any such product or service; (ii) bar you from making or completing any transactions on, through or in relation to the Site or the Services; and (iii) refuse to provide you with any such product or service.
Disclaimer About System Delays.You understand and acknowledge that the Site and/or the Services may be subject to limitations, delays and other problems inherent in the use of third-party communication networks and facilities that are outside of Forum’s control. Accordingly, Forum shall not be responsible for, and expressly disclaims, any delays, failures, losses, injuries, liabilities or damages associated with the Site and/or the Services which result from any system delays, downtimes, interruptions or other failures of or problems with the Site and/or the Services which are outside of Forum’s control (including, without limitation, scheduled maintenance or network failure).
Disclaimer About Certain Information, Communications and Content. Any opinions, advice, reviews, statements, offers or other information, communications or content found on, through or in relation to Forum, the Site, the Services or any third-party providers (including, without limitation, online forums, other websites, advertisements, and social media pages) are those of their respective authors, and not necessarily those of Forum; thus, they should not necessarily be relied upon. Such authors are solely responsible for the accuracy of such information, communications or content. Forum does not guarantee, adopt or endorse the accuracy, completeness, reliability or usefulness of any such information, communications or content, even if Forum is the author. Forum is not responsible for the accuracy, completeness, reliability or usefulness of any such information, communications or content. Under no circumstances shall Forum be liable to you or any third parties for any loss or damage caused by or arising from or in connection with your reliance on any such information, communications or content.
Limitation of Liability.In no event shall Forum or any of Forum’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors or licensees be held liable to (or be obligated to indemnify) you or any third party for any direct, indirect, punitive or special damages (including, without limitation, legal costs, attorney fees, lost profits, replacement costs or repair costs) caused by or arising from or in connection with: (i) your visit, access, or use of the Site or the Services, or your inability to visit, access, to or use the Site or the Services; (ii) any products or services made available on, through or in relation to the Site (including, without limitation, the Services); (iii) any statements, content or conduct of any third party on, through or in relation to the Site or any such products or services; (iv) any unauthorized access to or alteration of your personal; (v) any hacking, denial of service attacks, data security breaches or other third-party conduct that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s), or network(s); (vi) any transmission, download or infection of any software, system, program, file, process, device, application or routine (including, without limitation and by way of example only, robots, scrapers, spiders, viruses, spyware and malware) that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s), or network(s); (vii) the fact that you have relied on any information, content or communications published on, through or in relation to the Site or any such products or services; or (viii) any acts, errors or omissions of any third-party providers. If you are dissatisfied with the Site or any products or services offered, sold, licensed or made available on, through or in relation to the Site (including, without limitation, the Services), then your sole and exclusive remedy is to discontinue your access and use of the Site and such products and services.
No Injunctive Relief. If Forum breaches or otherwise violates this Agreement, then you shall not be entitled to seek or obtain, and you do hereby waive, any type of injunctive relief against the Site and/or any products or services made available on, through or in relation to the Site (including, without limitation, the Services) as a result of such breach or other violation. For the avoidance of doubt, the foregoing limitation on injunctive relief does not limit your ability to seek or recover any monetary remedies authorized by law in the event of any such breach or other violation (except for those which are otherwise expressly precluded by this Agreement).In no event shall Forum or any of Forum’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors or licensees be held liable to (or be obligated to indemnify) you or any third party for any direct, indirect, punitive or special damages (including, without limitation, legal costs, attorney fees, lost profits, replacement costs or repair costs) caused by or arising from or in connection with: (i) your visit, access, or use of the Site or the Services, or your inability to visit, access, to or use the Site or the Services; (ii) any products or services made available on, through or in relation to the Site (including, without limitation, the Services); (iii) any statements, content or conduct of any third party on, through or in relation to the Site or any such products or services; (iv) any unauthorized access to or alteration of your personal; (v) any hacking, denial of service attacks, data security breaches or other third-party conduct that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s), or network(s); (vi) any transmission, download or infection of any software, system, program, file, process, device, application or routine (including, without limitation and by way of example only, robots, scrapers, spiders, viruses, spyware and malware) that may lead to a compromise of your personal information or damage to your Device(s), software, operating system(s), file(s), carrier(s), or network(s); (vii) the fact that you have relied on any information, content or communications published on, through or in relation to the Site or any such products or services; or (viii) any acts, errors or omissions of any third-party providers. If you are dissatisfied with the Site or any products or services offered, sold, licensed or made available on, through or in relation to the Site (including, without limitation, the Services), then your sole and exclusive remedy is to discontinue your access and use of the Site and such products and services.
Limitation of Remedies. If Forum breaches or otherwise violates this Agreement, then in no event shall you be entitled to recover any special, incidental, consequential, speculative or punitive damages arising out of or in relation to such breach or other violation, even if Forum has been notified of the possibility of such damages; and in no event shall Forum’s liability under this Agreement exceed the amount of subscription fees that you have actually paid directly to Forum under this Agreement within the six (6) month period immediately preceding the date of such breach, if any, or other violation of this Agreement, or the non-subscription amount paid by you to purchase any products or services which are the subject of the dispute, controversy or claim, if any.
Consumer Protections. The disclaimers and limitations set forth in this section 15 are not intended to limit liability or alter your rights as a consumer that cannot be limited or altered under applicable law.
General Release of Claims. You hereby release and hold harmless Forum and Forum’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors and licensees from and against all claims that you have or may have against them for infringement, violation of the rights of privacy or publicity, defamation, disparagement, personal injury, property damage, negligence and/or any other legal theory arising from or in connection with the Site, the products or services made available on, through or in relation to the Site (including, without limitation, the Services) and/or the rights and privileges granted or conveyed by you under this Agreement (including, without limitation, those rights and privileges relating to the User Materials and/or any elements, derivatives or marketing of the foregoing). Further, you waive your right to, and in no event shall you seek to, enjoin Forum, any of Forum’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors or licensees or any exercise of the rights or privileges granted or conveyed by you under this Agreement (including, without limitation, the User Materials).
Indemnification. You hereby agree to indemnify, release and hold harmless Forum and Forum’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors and licensees from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties and expenses (including costs and reasonable outside attorneys’ fees) incurred by such indemnitees, or asserted against such indemnitees by third parties, arising out of or in connection with (a) your acts, errors or omissions, (b) your use of the Site or any products or services made available on, through or in relation to the Site (including, without limitation, the Services) in any manner contrary to the terms and conditions of this Agreement, (c) your violation of the rights of or other injury to any third party, and/or (d) your breach of all or any part of this Agreement.
Term; Termination; Survival. This Agreement shall continue and remain in effect until it is terminated in accordance with the terms and conditions of this Agreement. Forum may terminate this Agreement at any time, for any or no reason, and without notice to you (including, without limitation, if Forum believes that you have violated or acted inconsistently with any term or condition of this Agreement). If this Agreement is terminated for any reason, then all rights granted to you under this Agreement shall automatically revert back to Forum, and the following shall survive in perpetuity: (a) all defined terms under this Agreement; (b) all rights and privileges under this Agreement which were granted to and/or accrued in favor of Forum and/or any of Forum’s officers, directors, members, managers, owners, partners, agents, employees, representatives, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, contractors, vendors or licensees as of the date of this Agreement’s termination; (c) all disclaimers, limitations of liability and limitations of remedies; and (d) all representations, warranties, covenants, certifications, releases, indemnifications and promises made by you under this Agreement.
Governing Law.This Agreement, the additional terms, conditions and policies referenced herein (including Forum’s Privacy Policy), your visit, access, or use of the Site or the Services, any transactions made on, through or in relation to the Site, any products or services purchased on, through or in relation to the Site (including, without limitation, the Services), the Parties’ relationship and all disputes, controversies and claims arising from or in connection with any of the foregoing (whether grounded in contract, tort, statute, law, or equity) shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Delaware in the United States of America and applicable federal law of the United States of America, regardless of its place of execution, its place of performance, and any conflicts of law analysis. For the avoidance of any doubt, the United Nations Convention on Contracts for the International Sale of Goods shall have no application whatsoever.
Dispute Resolution.
Binding Arbitration; Waiver.Each Party hereby irrevocably submits all disputes, controversies and claims arising from or concerning this Agreement, any additional terms, conditions or policies referenced in this Agreement (including Forum’s Privacy Policy), your visit, access, or use of the Site or the Services, any transactions made on, through or in relation to the Site, any products or services purchased on, through or in relation to the Site (including, without limitation, the Services) and/or the Parties’ relationship (whether grounded in contract, tort, statute, law or equity) (collectively, the “Dispute(s)”) to binding arbitration administered by Judicial Arbitration and Mediation Services, Inc. (a/k/a JAMS) or its successor (“JAMS”) for the resolution thereof, and such arbitration shall be the sole and exclusive method for resolving the Disputes. The arbitration shall be binding, final and confidential. Each Party acknowledges and agrees that he/she/it is waiving the right to a trial by jury or to participate as the member of a class in any purported class action proceeding.
Arbitration Rules.The arbitration shall be conducted before a single arbitrator under the then-current JAMS Comprehensive Arbitration Rules & Procedures (the “JAMS Rules”), as supplemented by the Federal Rules of Civil Procedure and the Federal Rules of Evidence if and where applicable as a gap-filler. If there is any conflict between a provision of the JAMS Rules, the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or this Agreement, then the conflicting provision of this Agreement shall control and govern over the JAMS Rules, the Federal Rules of Civil Procedure and the Federal Rules of Evidence; and the JAMS Rules shall control and govern over the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The construction, interpretation, and enforcement of this section 20 is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.
Arbitration Process, Location, and Procedures.The Party initiating the arbitration proceeding shall serve a written notice of arbitration on the other Party in accordance with the JAMS Rules. The arbitration shall be held in Palo Alto, California, United States of America. The arbitration shall be conducted in the English language. The arbitrator shall be selected in accordance with the JAMS Rules, unless otherwise agreed to by the parties to the arbitration. All issues or questions concerning either the scope of this arbitration clause or the arbitrability of any of the Disputes shall be referred to and finally decided by the arbitrator. The arbitrator may construe or interpret, but shall not vary or ignore, the terms and conditions of this Agreement and shall be bound by applicable law.
Arbitration Decisions and AwardsThe arbitrator shall render a written final decision on the subject Dispute as soon as practicable and in any event not more than forty-five (45) days after the close of evidence and briefing. The arbitrator’s decision shall be written, shall be in accordance with applicable law, and shall be supported by written findings of fact and conclusions of law setting forth the basis for his/her decision. The arbitrator shall have no authority to award punitive, exemplary or consequential damages, unless such an award is authorized by applicable law. The arbitrator shall have the authority to award attorney fees and expenses if such an award is permitted under this Agreement or applicable law. Subject to any applicable rights of appeal, the final decision of the arbitrator shall be binding and conclusive upon all of the Parties who have been served with proper written notice of the arbitration proceeding as required by this section 20. Judgment on any award rendered by the arbitrator may be confirmed in any state or federal court having jurisdiction thereof that is located in the State of California, and may be entered in and enforced by any domestic, foreign, or international court having appropriate subject matter jurisdiction. Any decision, judgment, ruling, finding, award or other determination of the arbitrator and any information disclosed in the course of any arbitration hereunder shall be kept confidential by the Parties, and any court order to enforce the decision, judgment, ruling, finding, award or other determination of the arbitrator shall be filed under seal.
Arbitration Fees and Expenses. JAMS’s administrative and filing fees, the arbitrator’s fees and expenses and all other fees and expenses charged by JAMS and/or the arbitrator to administer or conduct the arbitration shall be shared equally among all parties to the arbitration; provided, however, that the prevailing party of the arbitration may recover an award of its share of such fees and expenses if such an award is permitted under this Agreement or applicable law.
Litigation; Waiver. In the event a particular Dispute is not subject to arbitration (whether by decision of an arbitrator with binding authority, or otherwise according to this Agreement or applicable law), each Party hereby irrevocably submits to the exclusive personal jurisdiction and venue of the state courts of the State of California in Santa Clara County, California, United States of America and the United States federal courts in the State of California, for the litigation of said Dispute, and covenant and agree that neither of the foregoing is an inconvenient venue or forum.
Waiver of Jury Trial and Class Action. Regardless of whether a particular dispute is subject to arbitration or litigation, each Party does hereby waive his/her/its right to a trial by jury, to participate as the member of a class in any purported class action or other proceeding or to name unnamed members in any purported class action or other proceedings.
Notice.Unless otherwise expressly stated in this Agreement, Forum may give or deliver all other notices to you by means of a general notice posted on this or another page of the Site or by email to the email address you provided Forum, and shall be deemed effective as of their stated effective dates.
Relationship.In no event shall this Agreement, the performance of a Party’s rights or obligations under this Agreement, the Site, the Services or a Party’s visit to, access of, or use of the Site and/or the Services create any type of fiduciary, franchise, agency, employment, independent contractor, partnership or joint venture relationship between you or Forum.
Miscellaneous.
Electronic Signatures. If your acceptance of this Agreement is further evidenced by your affirmative assent to the same (e.g., by a “check the box” acknowledgment procedure), then that affirmative assent is the equivalent of your electronic signature to this Agreement. However, for the avoidance of doubt, your electronic signature is not required to evidence or facilitate your acceptance and agreement to this Agreement, as you agree that the conduct described in this Agreement as relating to your acceptance and agreement to this Agreement alone suffices.
Excused Performance.Forum is hereby excused for any failure to perform under this Agreement to the extent that its performance is prevented by any reason outside of its reasonable control or that may be characterized as a force majeure event.
Assignment and Delegation. You shall not assign, delegate, or otherwise transfer any of your rights or obligations under this Agreement without Forum’s prior written consent in each instance.
Construction and Interpretation. This Agreement shall be construed to have been drafted by all of the Parties, so that any rule of construction or interpretation that construes or interprets ambiguities against the drafter shall have no force or effect.
Headings.Section headings are inserted in this Agreement for reference and convenience only and shall not interpret, define, limit or describe the scope, intent, terms or conditions of this Agreement.
Severability.If any term or condition of this Agreement is deemed invalid or unenforceable by the arbitrator or (if applicable) a court of law with binding authority, then the remaining terms and conditions shall not be affected, and said arbitrator or court of law shall reform the invalidated or unenforceable term or condition to the maximum extent permitted under the law and consistent with the intent of this Agreement.
Entire Agreement.This Agreement, together with those additional terms, conditions, and policies referenced herein and/or made available herein by hyperlink (including Forum’s Privacy Policy), constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof; supersedes any prior agreements and understandings, if any, between the Parties with respect to such subject matter; and shall inure to the benefit of and be binding upon the Parties and their respective successors and assigns.
Contact Us.Please direct any questions you may have about the Site, the Services or this Agreement to founders@forumbrands.com, with a subject line of “Website Question.” The foregoing contact information may change from time-to-time by supplementation, amendment, or modification of this Agreement.
Last Modified.This Agreement was last modified on October 13, 2020
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