Terms of Service
Last Updated: October 15, 2020
PLEASE READ THESE TERMS OF SERVICES (“TERMS”) CAREFULLY. Special Project, Inc., a Delaware corporation (together with our affiliates, “Special”, “Company” “we”, or “us”) offers a platform (the “Platform”) that enables independent creators and production companies (“Creators”) to publish premium video content and make available such content to audience members (“Subscribers”) via direct-to-Subscriber subscription memberships (the “Platform”). The Platform is offered via the website located at: specialproject.io (the “Site”). The Platform and the services offered via the Site and Platform will be referred to as the “Services”.
These Terms set forth the legally binding terms and conditions that govern your use of the SERVICES. BY CLICKING ON THE “I ACCEPT” BUTTON, CREATING AN ACCOUNT, AND/OR ACCESSING OR USING THE SITE, PLATFORM, OR SERVICES, you (“USER” OR “YOU”) are accepting these Terms (on behalf of yourself or the entity that you represent), and you represent and warrant that you have the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). If you do not agree with all of these Terms, do not access and/or use THE SITE OR SERVICES.
IF YOU USE THE SERVICES AS A SUBSCRIBER AND YOU PURCHASE A SUBSCRIPTION MEMBERSHIP TO A CREATOR’S PAGE VIA THE SERVICES (A “MEMBERSHIP”), THEN YOUR MEMBERSHIP WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS YOUR INITIAL SUBSCRIPTION TERM AT THE APPLICABLE CREATOR’S THEN-CURRENT FEES FOR SUCH MEMBERSHIP UNLESS YOU CANCEL YOUR MEMBERSHIP IN ACCORDANCE WITH SECTION 5.1(C) BELOW.
PLEASE BE AWARE THAT SECTION 11.1 OF these terms, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF these terms. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR ACCESS AND/OR USE OF THE SITE OR Services WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF MONTANA CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM these terms.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Services. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Services. The Supplemental Terms are incorporated by reference into these Terms.
PLEASE NOTE THAT the Terms are subject to change by Company in its sole discretion at any time. When changes are made, Company will make a new copy of the Terms available at our Site titled "Terms of Service". We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered with us to create an Account (defined in Section 1.1 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new users of the Services and Site visitors and will be effective thirty (30) days after posting notice of such changes on the Site for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Site or thirty (30) days after dispatch of an e-mail notice of such changes to existing users. Company may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
1.1 Account Creation. To use certain aspects of the Services, including as a Creator or to purchase Memberships as a Subscriber, you must register for an account (“Account”) on the Site and provide certain information about yourself as prompted by the account registration process. In creating an Account, we ask that you provide complete and accurate information about yourself. You represent and warrant that: (a) all required registration information you submit is truthful and accurate and (b) you will maintain the accuracy of such information. By creating an Account, you agree to receive notices from Special and the Creators of the Memberships that you purchase at the email address associated with your account. You may delete your Account at any time, for any reason, by following the instructions at our Site here. Company may suspend or terminate your Account in accordance with Section 10. A user who registers for an Account is a “User”.
1.2 Account Responsibilities. Company prohibits the creation of, and you agree that you will not, create an Account for anyone other than yourself or for your own personal or, in the case of Creators, business purposes. You may not impersonate someone else or provide an email address other than your own. You are responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company will not be liable for any loss or damage arising from your failure to comply with the above requirements.
1.3 Age Requirements. You must be at least 13 years old to use the Services. If you are under 18, you represent that you have your parent or guardian’s permission to use the Services. Please have them read these Terms with you. If you are a parent or legal guardian of a user under the age of 18, by allowing your child to use the Services, you are subject to these Terms and responsible for your child’s activity on the Services.
2. Access to the Services
2.1 Grant of Rights. Subject to these Terms, Company grants you a non-transferable, non-sublicensable, non-exclusive, revocable, limited right to access the Site and to use the features and functionality of the Services, (a) with respect to Subscribers, to view or listen to the content displayed on the Site or Services by other users or Company solely for your own personal, non-commercial use or (b) with respect to Creators to promote your business or artistic enterprise.
2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services, whether in whole or in part, or any content displayed on the Site or Services by other users or Company, except via Memberships; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms. All copyright and other proprietary notices on the Site or Services (or on any content displayed on the Site or Service) must be retained on all copies thereof.
2.3 Changes to the Services. Company is constantly changing and improving the Services. We may also need to alter or discontinue the Services, or any part of it, in order to make performance or security improvements, change functionality and features, make changes to comply with law, or prevent illegal activities on or abuse of our systems. These changes may affect all users, some users or even an individual user. Whenever reasonably possible, we will provide notice when we discontinue or make material changes to our Services that will have an adverse impact on the use of our Services. However, you understand and agree that there will be times when we make such changes without notice, such as where we feel we need to take action to improve the security and operability of our Services, prevent abuse, or comply with legal requirements.
2.4 Ownership. Excluding your User Content (defined in Section 4.1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to and/or use of the Site or Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. Using the Services does not give you ownership of or rights to any aspect of the Services, including usernames or any content displayed on the Site or Services by other users or Company.
2.5 Open-Source. Some software used in our Services may be offered under an open source license that we make available to you. There may be provisions in an open source license that expressly override some of these terms, so please be sure to read those licenses.
2.6 Feedback. You hereby grant to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback you provide relating to the Services (“Feedback”). Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
Please review the Privacy Notice to learn about:
- What information we may collect about you;
- What we use that information for; and
- With whom we share that information.
4.1 User Content
a. Generally. “User Content” means any and all information and content that a user makes available in connection with their use of the Services, including, but not limited to videos, audio, graphics, photos, text (such as comments), branding (including trade names, trademarks, service marks, or logos), interactive features, software, metrics, and other materials. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including by other users. Company is under no obligation to host or serve your User Content. You represent and warrant that your User Content does not violate our Acceptable Use Policy (as defined in Section 4.4) or Content Policy.
b. Uploading Content. If you are a Creator, you may upload User Content to the Services. If you choose to upload User Content, you must not upload any User Content that does not comply with these Terms (including the Acceptable User Policy). For example, the User Content you upload must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so. Company may use automated systems that analyze your User Content to help detect infringement and abuse, such as spam, malware, and illegal content. Creators have the ability via their Account settings to apply certain settings to the User Content you upload, such as making available certain User Content to Subscribers without Subscribers having to sign-up for a Membership and applying age restrictions to such User Content. Though Company may make available via the Services certain tools that permit Creators to manage such settings, such as applying age restrictions to such User Content, Creators are solely responsible for any such settings, including, age restrictions.
c. Removing Content. You may remove your User Content from the Services at any time by following the instructions at our Site here. Creators acknowledge and agree that Creator is solely responsible for creating backup copies of any user content uploaded to the Services at the Creator’s sole cost and expense. You must remove your User Content if you no longer have the rights required by these Terms. Although we have no obligation to screen, edit, or monitor you User Content, we may, in our sole discretion, delete or remove you User Content at any time and for any reason, including for violating these Terms, including our Acceptable Use Policy, violating our Content Policy or if you otherwise create or are likely to create liability for us.
d. Reporting Content. If you see any User Content or conduct you believe does not comply with these Terms, including by violating the Acceptable Use Policy, or our Content Policy, you can report it to Company by following the instructions at our Site here.
4.2 License. You retain ownership rights in your User Content. However, we do require you to grant certain rights to Company and other users of the Services, as described below. By making available User Content in connection with your use of the Services, you grant to Company a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use your User Content (including to reproduce, distribute, prepare derivative works, display and perform it) for the purposes of promoting, operating, providing, and improving the Services to and for you and our other users. You also grant each other user of the Services a worldwide, non-exclusive, royalty-free license to access your User Content through the Services, and to use that User Content, including to reproduce, distribute, prepare derivative works, display, and perform it in connection with such user’s use of the Services. The licenses granted by you continue for a commercially reasonable period of time after you remove or delete your User Content from the Services. You understand and agree, however, that Company may retain, but not display, distribute, or perform, server copies of your User Content that have been removed or deleted.
4.3 Copyright Infringement Claims. Company respects the intellectual property of others and requires that users of our Services do the same. We have a policy that includes the removal of any infringing material from the Services and for the termination, in appropriate circumstances, of users of our Services who are repeat infringers. If you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and email address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows: Sam Lucas, Copyright Agent. PO Box 6284-59771, Bozeman, Montana 59771. <email@example.com>. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Company for certain costs and damages. If we remove your User Content in response to a copyright notice, we will notify you. If you believe your User Content was wrongly removed due to a mistake or misidentification in a copyright notice, you can send a counter notification to our Copyright Agent (contact information provided above). Please see 17 U.S.C. § 512(g)(3) for the requirements of a proper counter notification.
4.4 What You Cannot Do. When using or accessing the Services, you must comply with these Terms and all applicable laws, rules, and regulations. Please review the Content Policy, which is incorporated by reference into these Terms and contain our rules about prohibited content. In addition to what is prohibited in the Content Policy, you agree to comply with the following terms (our “Acceptable Use Policy”):
a. You agree not to use the Services in any manner, to make available any User Content (including videos, comments, and links), or process any data you receive in connection with your use of the Services in any manner that (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) violated our Content Policy; or (iii) is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
b. You agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iii) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (iv) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (v) harass or interfere with any other user’s use and enjoyment of the Services; (v) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file); (vi) cause or encourage any inaccurate measurements of genuine user engagement with the Services, including by paying people or providing them with incentives to increase a video’s views, likes, or to increase a Creator’s Memberships, or otherwise manipulate metrics in any manner; or (vii) misuse any reporting, flagging, complaint, dispute, or appeals process made available via the Services, including by making groundless, vexatious, or frivolous submissions.
c. Creators, and not Company, are responsible for applying age restrictions to (whether via the tools made available via the Services or otherwise) and/or notifying other users of any User Content Creators upload to the Services that may not be suitable for certain age groups, such as if such User Content includes extreme violence or gore, nudity, or disturbing content. Creators will appropriately mark any of their User Content matching Company’s Mature Content Guidelines as ‘Mature Content’ before any such User Content being uploaded or otherwise made available via the Services. For more information, see our Content Policy.
d. Creators are responsible for complying, and will comply, with all applicable laws, rules, and regulations regarding the processing of any data (including personal data) Creators receive about their Subscribers in connection with Creators’ use of the Services, including relating to data privacy, data security, and data breaches. Creators will provide any required notices to Subscribers regarding their processing of any such data.
5. Fees and Payments
a. Membership Fees. You may access certain aspects of the Services without the payment of any fees. For example, Subscribers may be able to view a certain number of Creator videos in a certain period of time without a Membership or the payment of any Membership fees. In addition, Creators may make available certain videos to Subscribers without Subscribers having to sign-up for a Membership. Once a Subscriber exceeds any such free usage of the Services, any further use of the Services is prohibited unless you pay the applicable Membership fees. Subscribers agree to pay all fees and charges incurred in connection with your Account (including any Membership fees) accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Creators are solely responsible for setting the Membership fees and the available Membership subscription terms. Membership fees and the available Membership subscription terms are subject to change with or without notice. You must provide Company or the applicable Payment Processor (defined in Section 5.4 below) with a valid credit card (e.g., Visa or MasterCard) or other accepted payment method (e.g., Apple Pay) (each provider of such a payment method, a “Payment Provider”) as a condition to signing up for a Membership. Your Payment Provider agreement governs your use of the designated payment method, and you must refer to that agreement and not these Terms to determine your rights and liabilities. By providing Company or the applicable Payment Processor with your payment method and associated payment information, you agree that Company and/or such Payment Processor is authorized to immediately charge your payment method for all fees and charges due and payable hereunder and that no additional notice or consent is required. You agree to immediately notify Company and/or the applicable Payment Processor of any change in your payment method or associated payment information. All fees and charges are, unless otherwise stated, non-refundable and stated in US dollars.
b. Memberships. Subscribers are responsible for the payment of all applicable fees for any Membership they sign-up for via the Services. Subscribers can manage their Memberships via their Account settings, such as cancelling or re-subscribing to Memberships and managing their notifications regarding their Memberships.
c. Automatic Renewal of Memberships. If you have elected to purchase a Membership via the Services, your Membership will remain in effect until you cancel your Membership in accordance with this Section. After your initial subscription term, and again after any subsequent subscription term, your subscription will be automatically renewed for additional periods of the same duration as your initial subscription term, and you will be charged for each such additional subscription term at Creator’s then-current fees for such Membership. You may cancel your Membership by logging into your Account and following the instructions at our Site here at least one (1) day prior to the end of your then-current subscription term. Note that each Membership is subject to automatic renewal and you must cancel each Membership separately. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current subscription term expires. However, you will not be eligible for a prorated refund of any portion of the Membership fees paid for the then-current subscription term. By purchasing a Membership, you authorize Company and/or the applicable Payment Processor to charge your payment method upon your purchase of a Membership, and again at the beginning of each subsequent subscription term. Upon renewal, if Company does not receive payment from your Payment Provider, (a) you agree to pay all fees and charges, including Membership fees, due on your Account upon demand, and/or (b) you agree that Company and/or the applicable Payment Processor may either terminate or suspend your Membership and continue to attempt to charge your payment method until payment is received (upon receipt of payment, your Membership will be reactivated and your next subscription term will begin on the date of such payment).
5.2 Creator Fees. For all Membership fees received by Company from Subscribers, a platform fee of ten percent (10%) (plus a credit card processing fee of 2.9% plus 30 cents per transaction, charged by Stripe) is retained by Company (the “Platform Fee”). The remaining portion of the Membership fees for Memberships to Creator’s page are deposited directly into the Creator’s Stripe merchant account.
5.3 Taxes. You are solely responsible for payment of all applicable taxes, levies, penalties, and other costs imposed by any taxing authority or government agency related to receipt or payment of amounts hereunder including any sales tax, indirect taxes such as valued added tax (VAT) or goods and services tax (GST), use tax, duties, and other taxes imposed by municipalities, states, or governments through regulation, ordinance, law, or judicial or regulatory interpretation (collectively “Taxes”) and any related penalties or interest to the relevant tax authority and you will indemnify Company for any liability or expense we may incur in connection with such Taxes. All fees and charges hereunder exclude all Taxes. Except as required by law, Company will not calculate, track, or pay Taxes or submit reports regarding Taxes on your behalf. If any taxing authority demands that we pay such Taxes on your behalf, you are immediately liable to us for such Taxes and will reimburse or pay Company for such Taxes upon demand. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all Taxes. You agree to make all payments of fees and charges hereunder free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees or charges hereunder will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
5.4 Payment Processing. Company currently uses and reserves the right to continue using third party payment providers (“Payment Processors”). Your making or receipt of any electronic payment through any Payment Processor is also governed by the applicable Payment Processor’s terms of service. Currently, Company uses Stripe, Inc. (“Stripe”) as its Payment Processor for payment services (e.g., receipt and payment or amounts hereunder). As a condition to using such payment services, (a) you agree to be bound by and comply with the Stripe Connected Account Agreement (including the Stripe Services Agreement) located at: https://stripe.com/connect-account/legal as may be modified by Stripe from time to time (the “Stripe Agreement”) and (b) you must provide accurate and complete payment information and you authorize us to share this information with the applicable Payment Processor and authorize Company and the Payment Processors to share any information and payment instructions you provide to the extent required to complete the payment services. All payment information is sent directly to and stored with the applicable Payment Processor using their security protocols. Company does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. If the Stripe Agreement or your use of Stripe’s services is terminated by Stripe, you may not be able to use certain portions of the Services. We may change or add other Payment Processors at any time with or without notice to you, and your use of payment services via such Payment Processors may be subject to additional terms or conditions.
5.5 Non-Circumvention. Users may not take any action to circumvent or disintermediate the Platform Fee due to Company hereunder. Examples of such actions include: (a) Creators permitting the payment for memberships by Subscribers outside of the Services; and (b) Creators directing Subscribers to the Creator’s website or any other outside source to access User Content uploaded to the Services by the Creator.
To the extent permitted by applicable law, you agree to indemnify and hold Company (and its officers, directors, employees, and agents) harmless, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from (a) your use of or access to the Site and/or Services, (b) your User Content, (c) your violation of these Terms; or (d) your violation of applicable laws, rules or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
7. Third-Party Links and Other Users
7.2 Other Users. Each user is solely responsible for its own User Content and its use of the Services. Because we do not control User Content or such use, you acknowledge and agree that we are not responsible for and make no guarantees regarding, any User Content, whether provided by you or by others, or any use of the Services by any other user.
OTHER THAN AS EXPRESSLY STATED IN THESE TERMS OR AS REQUIRED BY LAW, THE SITE AND SERVICES ARE PROVIDED “AS IS” AND COMPANY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES, OR GUARANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. COMPANY AND OUR SUPPLIERS MAKE NO WARRANTIES ABOUT: (A) THE CONTENT PROVIDED THROUGH THE SERVICES; (B) THE SPECIFIC FEATURES OF THE SITE OR SERVICES, OR THEIR ACCURACY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS; OR (C) THAT ANY USER CONTENT YOU SUBMIT WILL BE ACCESSIBLE ON THE SERVICES.
9. Limitation on Liability
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE COMPANY (OR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS) BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS OPPORTUNITIES, GOODWILL, OR ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICES OR THESE TERMS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY.
COMPANY’S TOTAL LIABILITY TO YOU FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICES OR THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE AMOUNT OF REVENUE THAT COMPANY HAS PAID TO YOU FROM YOUR USE OF THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM, (B) FIFTY US DOLLARS (U.S. $50), AND (C) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICES OR THESE TERMS.
THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO LIABILITY OF COMPANY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY ITS FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
10. Account Suspension and Termination
10.1 Termination by You. You may stop using the Services at any time. You may delete your Account at any time, for any reason, by following the instructions at the Site here, which may involve the removal of all data in your Account and, with respect to Creators, the deletion of your Creator page from the Site and/or Services and the removal of any User Content you uploaded to the Services. Creators acknowledge and agree that Creator is solely responsible for creating backup copies of any user content uploaded to the Services at the Creator’s sole cost and expense.
10.2 Termination and Suspension by Company. Company may suspend or terminate your access to all or part of the Site and/or Services, your Account, or your Account’s access to all or part of the Site and/or Services at any time for any or no reason, including for violating these Terms, including our Acceptable Use Policy, or our Content Policy.
10.3 Notice for Termination or Suspension. We will notify you with the reason for termination or suspension by Company unless we reasonably believe that to do so: (a) would violate the law or the direction of a legal enforcement authority, or would otherwise risk legal liability for Company; (b) would compromise an investigation or the integrity or operation of the Service; or (c) would cause harm to any user, other third party, or Company. Where Company is terminating your access for changes to the Services, where reasonably possible, you will be provided with sufficient time to export any User Content you uploaded to the Services.
10.4 Effect of Termination or Suspension. If your Account is terminated or your Account’s access to the Services is restricted, you may continue using certain aspects of the Services (such as viewing only) without an Account, and these Terms will continue to apply to such use. If you believe your Account has been terminated in error, you can contact us at <firstname.lastname@example.org>. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2, 2.4, 2.6, and 4 –11.
11.1 Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
(a) Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site and/or Services or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, and (2) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
(b) Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Sam Lucas, Registered Agent. PO Box 6284-59771, Bozeman, Montana 59771. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
(d) Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(e) Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the state or federal courts located in the State of Montana. All other claims shall be arbitrated.
(f) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to <email@example.com> within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
(g) Severability. Except as provided in subsection 11.1(e), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
(h) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
(i) Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at <firstname.lastname@example.org>.
11.2 International Users. The Site and/or Services can be accessed from countries around the world and may contain references to Services that is not available in your country. These references do not imply that Company intends to announce such Services in your country. The Site and Services are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Site and/or Services are appropriate or available for use in other locations. Those who access or use the Site and/or Services from other countries do so at their own volition and are responsible for compliance with local law.
11.3 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Montana.
11.4 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Montana, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
11.5 Export. The Site and/or Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
11.6 Electronic Communications. The communications between you and Company use electronic means, whether you use the Site and/or Services or send us emails, or whether Company posts notices on the Site and/or Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
11.7 Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: Special Project, Inc., c/o Sam Lucas, Registered Agent. PO Box 6284-59771, Bozeman, Montana 59771 or except as otherwise stated, email address: <email@example.com>. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address or, with respect to emails, upon confirmation that the email was received.
11.8 Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, pandemic, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
11.9 Entire Agreement. These Terms constitute the entire agreement between you and us regarding the access to or use of the Site and/or Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
11.10 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Company Properties, please contact us at <firstname.lastname@example.org>. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
11.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.12 Contact Information:
Special Project, Inc.
7 West Main Street, Suite 206
Bozeman, Montana 59715