EFFECTIVE DATE: March 1, 2023
THIS AGREEMENT CONTAINS A BINDING ARBITRATION AGREEMENT, WHICH PROVIDES THAT YOU AND WE AGREE TO RESOLVE CERTAIN DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION AND GIVE UP ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR A JURY. YOU HAVE THE RIGHT TO OPT OUT OF OUR AGREEMENT TO ARBITRATE. SEE THE “LEGAL DISPUTES” SECTION OF THIS AGREEMENT.
Additional terms may apply to your use of certain Services. We will provide these terms to you, post them on the Services to which they apply, and/or present them to you at the time of download or installation, as applicable, and they are incorporated by reference into this Agreement. Unless and except as specifically set forth herein, if there is a conflict between this Agreement and any additional terms that apply to a particular Service, the additional terms will control.
ACCESSING THE WEBSITE
The Website is made available free of charge. DAWN SKY does not guarantee that the Website, or any service or content on it, will always be available or be uninterrupted. Access to the Website is permitted on a temporary basis (DAWN SKY offers the Website service for a duration restricted to the moment in which users access and connect to the Website or to any other service offered). DAWN SKY may suspend, withdraw, discontinue or change all or any part of the Website without notice. DAWN SKY will not be liable to the users if for any reason the Website is unavailable at any time or for any period.
DAWN SKY does not represent that content available on or through the Website is appropriate or available in other locations. DAWN SKY may limit the availability of the Website or any service or product described on the Website to any person or geographic area at any time.
THIRD PARTY PROPERTIES; SOCIAL MEDIA SITES; REGISTRATION AND PASSWORD
In certain instances, you may be able to connect and/or link your account to certain third party social media sites ("Social Media Sites"), including, without limitation, Facebook and Twitter. BY CONNECTING OR LINKING YOUR ACCOUNT TO ANY SOCIAL MEDIA SITE, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE CONSENTING TO THE CONTINUOUS RELEASE OF INFORMATION ABOUT YOU TO OTHERS, INCLUDING TO THE SOCIAL MEDIA SITE (IN ACCORDANCE WITH YOUR PRIVACY SETTINGS ON SUCH SOCIAL MEDIA SITE). IF YOU DO NOT WANT INFORMATION ABOUT YOU TO BE SHARED IN THIS MANNER, DO NOT CONNECT OR LINK YOUR ACCOUNT TO ANY SOCIAL MEDIA SITE.
DAWN SKY reserves the right to seek the registration of users for access to certain services on the Website. When prior registration is required, users must complete the online registration process as expressly established for each service, providing the information as prompted in the relevant registration form. Registration may require to be firstly subscribed with a third party provider (i.e social network, email provider). The user must abide by the terms and conditions of such a third party provider before registering.
All the information provided by users through the Website must be truthful, accurate, updated and complete. For this purpose, each user guarantees the authenticity of all data that he/she provides when filing the forms required to register or subscribe to the relevant services.
You may not access any age-restricted Services unless you are above the required age. In no case are persons under the age of thirteen permitted to use the Services.
If the user chooses or is provided with a user identification code, password or any other piece of information as part of our security procedures (the “password/s“), the user must treat such information as confidential. The user must not disclose it to any third party and will use it diligently. You are responsible for maintaining the confidentiality of your user account login names and passwords, and must not permit use of your account by anyone other than members of your household. You accept responsibility for all activities, charges, and damages that occur under your account, including use of your account by other members of your household, and unauthorized use of your account. If you have reason to believe that someone is using your account without your permission, you should contact us immediately. We are not responsible for any loss or damage resulting from unauthorized use.
Assigned passwords are personal and non-transferable; no assignment of passwords, even temporarily, to third parties is permitted. As such, users agree to use their passwords diligently and keep such passwords secret. In the event that a user knows or suspects the loss, theft or use of his/her password by others or that anyone other than the user knows his/her password, then that user must promptly bring this to the attention of DAWN SKY at [email protected]
Each user is responsible for costs and damages caused by the use of the Website, content or services by any third party using his/her password due to careless use or loss of it by a user.
Use of the Website and its content is entirely voluntary and under the sole and exclusive responsibility of the user.
Without limiting any other provision in this Agreement, you agree we may take any of the following actions in our sole discretion at any time, and without giving you prior notice:
Change, suspend or discontinue all or any part of the Services;
Change how we offer and operate Services (e.g., to begin charging a fee to access features or Content that we previously made available without charge);
Remove content from the Services;
Restrict, suspend or terminate your access to one or more Services or features thereof; and
Deactivate your accounts and delete all related information and files in your accounts.
We will not be liable to you or any third party for taking any of these actions and we will not be limited to the remedies above if you violate this Agreement. You further acknowledge and agree that even if a copy of a mobile application continues to reside on your device, after we make changes in our product or services offerings, the mobile application may not work as it did prior to such action, and we will have no liability to you or any third party as a result.
Users are obliged to use the Website, content and services in a diligent, proper and lawful manner. Without limiting any other provision in this Agreement, you agree not to do the following, or assist others to do the following:
access the Services using any interface other than ours;
maintain any link to the Services that we ask you to remove, in our sole discretion;
Ffame the Services or content, make the Services or content available via in-line links, otherwise display the Services orcContent in connection with an unauthorized logo or mark, or do anything that could falsely suggest a relationship between us or our affiliates and any third party or potentially deprive us of revenue (including, without limitation, revenue from advertising, branding, or promotional activities);
threaten, defame, stalk, abuse, or harass other persons or engage in illegal activities, or encourage conduct that would constitute a criminal offense or give rise to civil liability;
use the Website, content and Services in a manner that results in activity which is illegal, immoral or against generally accepted best practices or public order, including but not limited to, conducting unlawful or fraudulent transactions or ones that could facilitate illegal or fraudulent behavior of any kind, or using the Website, content and services in a way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect;
use the Website, content and Services in a manner that breaches any applicable local, regional, national or international law or regulation;
transmit or disseminate any data, content, messages, graphics, drawings, sounds, images, recordings, software, and in general, any material that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, that may induce activity which is criminal, slanderous, defamatory, violent or contrary to law, moral rights or generally accepted best practices or public order, or that we deem, in our sole discretion, to be otherwise objectionable;
violate any person’s or entity’s legal rights (including, without limitation, intellectual property, privacy, and publicity rights), transmit material that violates or circumvents such rights, or remove or alter intellectual property or other legal notices; infringe intellectual or industrial property belonging to third parties or DAWN SKY;
transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
advertise or promote goods or services without our permission (including, without limitation, by sending unsolicited email) or otherwise use the Website, content and services for commercial purposes;
remove, modify, disable, block or otherwise impair any advertising in connection with the Services;
interfere with, damage, or otherwise disrupt any part of the Website, the Services, any equipment or network on which the Website is stored, and any software or hardware used in the provision of the Services, including, but not limited to, using the services and content in a way that could undermine or overload the operation of the Website;
disassemble, decompile or otherwise reverse engineer any software or other technology included in the Content or used to provide the Services or reproduce, duplicate, copy, resell or distribute any part of the Website or the content, or allow public access to them through any form of public communication, or transform or modify it, unless with the permission of the copyright owner or corresponding rights holder;
transmit, collect, or access personally identifiable information about other users without the consent of those users and us;
engage in unauthorized spidering, “scraping,” data mining or harvesting of content, or use any other unauthorized automated means to gather data from or about the Services;
impersonate any person or entity or otherwise misrepresent your affiliation or the origin of materials you transmit;
remove, avoid, interfere with, or otherwise circumvent any access control measures for the Services or content, including password-protected areas and geo-filtering mechanisms, or any digital rights management measures used in connection with Content;
sending, knowingly receive, upload, download, using, re-using any material or content which does not comply with DAWN SKY content standards below; or
access any portion of the Services that we have not authorized you to access (including password-protected areas), link to password-protected areas, attempt to access or use another user’s account or information, or allow anyone else to use your account or access credentials.
If you violate this Agreement, we may terminate your access to the Services without notice, and take any other actions or seek any remedies permitted by law. If we terminate your access to any of the Services, you must immediately stop using such Services. However, if you have paid for a subscription to a paid Service, and we discontinue the Service before the end of a paid subscription period, or we terminate your account before the end of a paid subscription period for reasons other than your breach of this Agreement, we will refund a prorated portion of the applicable subscription fee corresponding to the portion of the paid subscription period for which our action caused you not to have access to the relevant Service. If we terminate your access to a paid Service because you breached this Agreement, you will not be entitled to any refund.
Users are liable for damages of any kind that DAWN SKY may suffer directly or indirectly as a
The Website may include information and materials uploaded by other users of the Website. This information and these materials have not been verified or approved by DAWN SKY. The views expressed by other users on our site do not represent DAWN SKY views or values. The views expressed by users on the Website or the interactive services do not represent DAWN SKY views, values, opinions or positions and the users are responsible for their comments and for the information, material or content they publish.
Where DAWN SKY does moderate an interactive service, DAWN SKY will normally provide the user with means of contacting the moderator, should a concern or difficulty arise.
The Website or Services may allow you to submit or transmit audio, video, text, or other materials, including so-called “user generated content” and “feedback” (collectively, “User Submissions” or “User Contributions”) to or through the Services. When you provide User Submissions, you grant to us and our affiliates and partners a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, fully sublicensable license to use, reproduce, archive, edit, translate, create derivative works of, make available, distribute, sell, display, perform, transmit, broadcast and in any other way exploit those User Submissions, and any names, voices, likenesses and other identifying information of persons that is part of those User Submissions, in any form, media, software, or technology of any kind now known or developed in the future, including, without limitation, for developing, manufacturing, and marketing products. You hereby waive any moral rights you may have in your User Submissions.
The following content standards (the “content standards”) apply to User Submissions. The user must comply with the spirit and the letter of these standards, which apply to each part of any contribution as well as to its whole.
User Contributions must:
be accurate (where they state facts);
be genuinely held (where they state opinions); and
comply with applicable laws in the State of Delaware and in any jurisdiction from which they are posted.
User Contributions, including the information contained therein, must not:
infringe any copyright, database right or trademark or any other right of Dawn Sky or any third party;
violate or infringe any law, statute, ordinance, or regulation or promote any illegal activity;
advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse;
contain any material which (a) is defamatory of any person, trade libelous, unlawfully threatening, abusive, unlawfully harassing, defamatory, obscene, explicit or vulgar, offensive, hateful or inflammatory, (b) promotes sexually explicit material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, (c) is likely to harass, upset, embarrass, alarm or annoy any other person, (d) infringes on our or any third party’s rights of publicity or privacy;
be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
be likely to deceive any person or be used to impersonate any person, or to misrepresent your identity or affiliation with any person; and
give the impression that they emanate from DAWN SKY if this is not the case.
immediate, temporary or permanent withdrawal of the user’s right to use the Website;
immediate, temporary or permanent removal of any contribution, posting or material uploaded by the user to the Website or any interactive service associated to it;
sending a warning to the user;
legal proceedings against the user for reimbursement of all costs on an indemnity basis (including, but not limited to, reasonable administrative and legal costs) resulting from the breach;
further legal action against the user; and/or
disclosure of such information to law enforcement authorities as reasonably necessary and to the extent permitted by law.
Any users’ contribution to the Website will be considered non-confidential and non-proprietary. Each user retains all of his/her ownership rights in his/her contributions, but grants DAWN SKY and other users of the Website a free of charge license to use, store and copy those contributions and to distribute and make them available to third parties, with the widest and longest scope and duration permitted by law for the purposes of public display the contribution of the Website. Users expressly authorize DAWN SKY to use the contributions published, uploaded or sent by them for the promotion and marketing of the Website.
Users are solely responsible for securing and backing up their content.
4. INTELLECTUAL PROPERTY RIGHTS
The Website and its content, including written, audio and video materials, photographs, text, graphics, logos, layouts, designs, interfaces, software, data and other content associated with the Services (“Content”) are protected by intellectual property and other laws in the U.S. and in other countries. You must comply with all such laws and applicable copyright, trademark or other legal notices or restrictions. You shall not remove or alter any copyright, trademark, or other legal notices marked on the Content. As between you and us, we will retain all right, title, and interest in and to the Services and the Content. No transfer of ownership to any portion of the Content shall be made as a result of any access you are granted. Except as specifically provided herein, we reserve all rights to the Services and Content.
It is expressly prohibited to reproduce, distribute, modify, transfer, communicate or make available to the public, extract, reuse, resend and in any other manner use by any means the Website or any of the parts or elements thereof (including, but not limited to text, design, graphics, information, data, archives, sound files and/or images, logos, etc.), unless the holder of the relevant rights (either DAWN SKY or a third party) has provided its prior written authorization or if it is permitted by law. The breach of these obligations may constitute a violation of the intellectual or industrial property rights and other applicable laws.
Users must not use any part of the information, content or material on the Website for commercial purposes without obtaining a license to do so from DAWN SKY or its licensors. You are only permitted to access and view the Content for personal, non-commercial purposes in accordance with this Agreement, and may not build a business or other enterprise utilizing any of the Content, whether for profit or not. You must obtain our written permission for commercial use of the Content or the Services. If you wish to license Content from the Services, please contact us. Except as provided in this Agreement or otherwise expressly authorized by us in writing, you may not either directly or through the use of any software, device, internet site, web-based service or other means download, stream capture, store in a database, archive or otherwise copy any part of the Services or Content; upload, sell, rent, lease, lend, broadcast, transmit or otherwise disseminate, distribute, display or perform any part of the Services or Content; license or sublicense any part of the Services or Content; or in any way exploit any part of the Services or Content. In addition, except as provided in this Agreement or otherwise expressly authorized by us in writing, you are strictly prohibited from modifying Content; creating, distributing or advertising an index of any significant portion of the Content; or otherwise creating derivative works or materials that otherwise are derived from or based in any way on the Content, including mash-ups and similar videos, montages, translations, desktop themes, fonts, icons, wallpaper, greeting cards, and merchandise. This prohibition from creating derivative works is applicable even if you intend to give away the derivative material free of charge.
It is expressly prohibited to access or obtain, or attempt to access or to obtain the information, materials or content of the Website through means or procedures other than those which, if any, (i) have been made available to users or have been indicated for this purpose; or, in general or, (ii) are commonly used on the Internet for this purpose, provided that they do not imply a risk of damage, mutilation or uselessness of the Website, the information, materials or content.
In addition to the general terms applicable to the Services, the following terms apply to Services designed for wireless devices (“Mobile Features”), which we offer only to users who are 18 years of age or older and located in the fifty U.S. states or the District of Columbia unless otherwise noted. Your wireless provider may charge for use of Mobile Features, including fees for receipt of text messages or data transmission. In order to receive Mobile Features, your wireless provider may require you to subscribe to additional services, which may require additional fees. These fees are not charged by us, and you should contact your wireless provider before you sign up for Mobile Features to determine what fees, if any, will be charged. In addition, you agree that we may arrange for Mobile Features billing through your wireless provider and that your wireless provider may invoice you for the applicable fees or deduct them from your pre-paid balance. You may not transfer or copy any Content from the wireless device on which you originally received Content to any other device, including, without limitation, any computer or another wireless device. To cancel a Mobile Feature that involves a subscription fee, you must follow the instructions included in the terms and conditions applicable to that Mobile Feature; otherwise, you will continue to incur subscription charges. If you stop a subscription-based Mobile Feature in the middle of a billing cycle, you will not receive a refund for that billing cycle.
5. NO RELIANCE ON INFORMATION
The content on the Website is provided for general information only. It is not intended to amount to advice on which users should rely on. Users must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on the Website.
DAWN SKY makes no representations, warranties or guarantees, whether express or implied, that the Website or any information or content on it is accurate, complete or up-to-date or will be free from errors or omissions.
DAWN SKY cannot warrant that contributions sent by users have been provided after users have actually tried, viewed, checked or otherwise used, as applicable, the content or service for which the contribution is related.
6. DISCLAIMER OF WARRANTIES AND LIABILITY
injury, for gross negligence or willful misconduct, or any other liability that cannot be excluded or limited by law.
To the extent permitted by law, DAWN SKY excludes all conditions, warranties, representations or other terms which may apply to the Website or any information, content or material on it, whether express or implied.
DAWN SKY reserves the right to terminate the users’ access to the Website as well as the provision of any or all content or service provided through it at any time and without notice, for technical, security, maintenance or power failure reasons or any other reasonable cause.
Accordingly, DAWN SKY does not guarantee the reliability, availability or continuity of the Website, the content or the services, so that the use of them by users is done at their own risk, and DAWN SKY cannot be held liable for any loss or damage arising under or in connection with the use of, or inability to use the Website or services or the discontinuance or unavailability of the Website or services.
DAWN SKY will not be held liable for any interruptions to such services, delays, errors, malfunctions and, in general, any other problems that originate from causes beyond the reasonable control of DAWN SKY, and/or due to willful misconduct or fault of users and/or due to Force Majeure. Force Majeure is understood to include all those events beyond the reasonable control of DAWN SKY, such as failures of third parties, operators or service companies, acts of government, lack of access to third-party networks, acts or omissions by public authorities, those produced as a result of natural disasters, power outages, and the attack by hackers or other third parties to the security or integrity of the system. In any case, whatever their cause to the extent permitted by the applicable law, DAWN SKY shall have no liability whatsoever for any direct or indirect damages, consequential damages and/or loss of profits.
To the extent permitted by the applicable law, DAWN SKY excludes all liability for damages of any kind that may result from the lack of truthfulness, accuracy, completeness and/or timeliness of the content transmitted, stored, made available or received, obtained or accessed through the Website, nor for the content provided or offered by third parties or entities.
DAWN SKY is not responsible for the content or information collected in the Website, nor for the users’ contributions or for those opinions, comments, insights or other communications that are not issued directly by DAWN SKY.
DAWN SKY undertakes to comply with the security legal obligations and to adopt all security measures that are mandatory under applicable law. However, DAWN SKY cannot and does not warrant that internet transmissions are completely private or secure, that any information may not be read or intercepted by others, or that there will not be any viruses, other harmful elements in the content that may cause alterations in the computer systems as well as in documents or other systems stored therein. Correlatively DAWN SKY cannot accept any liability deriving therefrom.
DAWN SKY excludes liability for the content or contributions that users send DAWN SKY via the Website, via email or any other means, therefore, the users being liable for content or contributions sent by them. Similarly, DAWN SKY is not liable for the use that users make of the content of the Website or their passwords, and any other material contained on the Website that potentially constitutes a violation of any regulations, national or international, of the rights of intellectual property or other rights of third parties. Similarly, DAWN SKY will not be held liable for any possible security errors that may occur through the use of outdated versions of browsers, or for any consequences that may arise from malfunctions of browsers, either by improper configuration, computer virus or any other cause not directly related to DAWN SKY.
7. LINKS TO THIRD PARTY SITES (OUTBOUND LINKS)
The Website may include technical linking devices, directories, and even search tools that allow users to access other sites (“Linked Sites“) solely with the purpose to facilitate the search for and access to information, content, and services available on the Internet.
In the event that users consider that a Linked Site contains illegal or inappropriate content then they should promptly contact DAWN SKY via email ([email protected]
In no event does the existence of Linked Sites deem the existence of agreements or any business relationship between DAWN SKY and those who run, manage, are responsible for or owners of such Linked Sites, nor the support, approval, recommendation, promotion or identification of DAWN SKY with the content or services offered by them.
DAWN SKY (i) does not assume any responsibility for the content or services of other websites, and shall not be held liable for any losses or damages caused by the unlawfulness, quality, unavailability, error or use of the content and/or services of the Linked Sites nor for any other damage that is not directly attributable to DAWN SKY except for that which may be set out herein; and (ii) does not guarantee the absence of viruses or other similar elements which may cause alterations in the users’ information systems (hardware and software), electronic documents and/or files. DAWN SKY is not responsible for the results obtained through the Linked Sites. If users choose to visit and/or use any of the Linked Sites then they do so at their own risk and must take appropriate protective measures against viruses or other harmful elements.
8. LINKS TO THE WEBSITE (INBOUND LINKS)
In the event that a third party links to any of DAWN SKY’s Websites domain or subdomain names (or a specific country variant of such domain), DAWN SKY may seek, at any time and without providing the reasons for the request, the removal of any link to the Website, after which the party responsible for such site should immediately proceed to the elimination of such inbound link.
The insertion of the link will in no event imply the existence of agreements or a relationship between DAWN SKY and the relevant third party or the approval by DAWN SKY of the content and services offered in the relevant website.
9. PRIVACY AND PROTECTION OF PERSONAL DATA
DAWN SKY may update the Website and change the content, design, presentation and/or the configuration at any time without prior notice.
11. LEGAL COMPLAINTS
We respect intellectual property rights, and this Agreement is intended to comply with the requirements of the Online Copyright Infringement Liability Limitation Act and the Digital Millennium Copyright Act. We will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”). If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the written information specified below:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
A description of the copyrighted work that you claim has been infringed upon.
A description of where the material that you claim is infringing is located on the Services.
Your address, telephone number, and email address.
A 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.
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.
Pursuant to the DMCA, written notification of claimed copyright infringement must be submitted to the following designated agent:
Dawn Sky Technology LLC
3019 Wilshire Blvd, #309
Santa Monica, CA 90403
You will defend, indemnify and hold harmless us, our affiliates, and their respective directors, officers, employees, shareholders, vendors, partners, contractors, agents, licensors or other representatives and all of their successors and assigns (collectively, the “Indemnified Parties”) with respect to all third party claims, costs (including attorney’s fees and costs), damages, liabilities, and expenses or obligations of any kind, arising out of or in connection with your use or misuse of the Services (including, without limitation use of your account, whether or not authorized by you, and claims arising from User Submissions). We retain the right to assume the exclusive defense and control of any claim subject to indemnification, and in such cases you agree to cooperate with us to defend such claim. You may not settle any claim covered by this Agreement without our prior written approval.
13. DISCLAIMERS; LIMITATION OF LIABILITY
THE INDEMNIFIED PARTIES DO NOT WARRANT: (1) THAT THE SERVICES, ANY OF THE SERVICES’ FUNCTIONS OR ANY CONTENT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS; (2) THAT DEFECTS WILL BE CORRECTED; (3) THAT THE SERVICES OR THE SERVERS HOSTING THEM ARE FREE OF VIRUSES OR OTHER HARMFUL CODE; OR (4) THAT THE SERVICES OR INFORMATION AVAILABLE THROUGH THE SERVICES WILL CONTINUE TO BE AVAILABLE. THE INDEMNIFIED PARTIES SHALL HAVE NO LIABILITY FOR ANY SUCH ISSUES. THE INDEMNIFIED PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND AS TO QUALITY, AVAILABILITY AND SUBJECT MATTER OF CONTENT. THE SERVICES, INCLUDING ALL CONTENT AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE SERVICES, ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.”
YOUR ACCESS TO AND USE OF THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT) IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.
THE INDEMNIFIED PARTIES WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN THEIR PERFORMANCE DUE TO ANY CAUSE BEYOND THEIR REASONABLE CONTROL, INCLUDING ACTS OF WAR, ACTS OF GOD, ACTS OF THIRD PARTIES, EARTHQUAKE, FLOOD, EMBARGO, RIOT, SABOTAGE, LABOR SHORTAGE OR DISPUTE, GOVERNMENTAL ACT, POWER FAILURE OR FAILURE OF THE INTERNET OR COMPUTER EQUIPMENT.
THE INDEMNIFIED PARTIES WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT), YOUR USE OF THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT), THIS AGREEMENT OR YOUR USER SUBMISSIONS, EVEN IF FORESEEABLE OR EVEN IF ONE OR MORE OF THE INDEMNIFIED PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE, BUT EXCLUDING WILLFUL MISCONDUCT). IN NO EVENT WILL THE INDEMNIFIED PARTIES’ LIABILITY FOR OTHER DAMAGES EXCEED THE LESSER OF $100 OR THE AMOUNT PAID BY YOU TO US FOR ACCESS TO THE RELEVANT SERVICE IN THE THREE MONTHS PRECEDING THE CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF THE INDEMNIFIED PARTIES’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE NOT SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING OPERATION OF THE SERVICES OR ANY OTHER SERVICE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, MOTION PICTURE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE INDEMNIFIED PARTIES.
14. LEGAL DISPUTES
You and we agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of this Agreement, your use of or access to the Services will be resolved in accordance with the provisions set forth in this Legal Disputes section. Please read this Section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
You agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and us, except as otherwise stated in this Agreement. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, if applicable. Notwithstanding any other provision of this Agreement, we may seek injunctive or other equitable relief from any court of competent jurisdiction.
Regardless of any statute or law to the contrary, you must file any claim or action related to use of the Services or this Agreement within one year after such claim or action accrued. Otherwise, you will waive the claim or action.
Arbitration/Class Waiver/Opt Out Clauses
1. You and we each agree to resolve exclusively through final and binding arbitration any and all disputes or claims that have arisen or may arise between you and us (including any affiliates, officers, directors, employees, and agents), whether or not such dispute or claim involves a third party, relating in any way to any aspect of our relationship or any contact between us, direct or indirect, or arising out of this or previous versions of this Agreement, your use of or access to our Services, or any products or services sold, offered, or purchased through our Services (“Dispute”).
You and we agree to submit the Dispute to a single arbitrator under the then-current Commercial Arbitration Rules of the American Arbitration Association (AAA), including when applicable the Optional Rules for Emergency Measures of Protection and the Consumer Arbitration Rules, or, by separate mutual agreement, at another arbitration institution. The AAA’s rules, information regarding initiating a claim, and a description of the arbitration process are available at www.adr.org. The location of the arbitration and the allocation of fees and costs for such arbitration shall be determined in accordance with the AAA rules. As an alternative, you or we may bring a claim in your local “small claims” court, if permitted by that small claims court’s rules.
The Federal Arbitration Act governs the interpretation and enforcement of this Section regarding our agreement to arbitrate any Dispute (“Agreement to Arbitrate”), and the arbitrability of the Dispute. The arbitrator will decide whether the Dispute can be arbitrated.
You and we agree that each of us may bring a Dispute against the other only on our own behalf, and not on behalf of a government official or other person or entity, or a class of persons or entities. You and we agree, if we are a party to the proceeding, not to participate in a class action, a class-wide arbitration, a claim brought in a private attorney general or representative capacity, or a consolidated claim involving another person’s use of the site or our services. You and we agree not to combine a claim that is subject to arbitration under this Agreement with a claim that is not eligible for arbitration under this Agreement. You and we agree to waive the right to a trial by jury for all disputes.
You may opt out of this Agreement to Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing, within 30 days of the date that you first became subject to this Agreement to Arbitrate, either by U.S. mail delivered to: Attn: Dawn Sky Technology LLC, 3019 Wilshire Blvd, #309, Santa Monica, CA 90403, or by email delivered to [email protected]
. You must include: (1) your name and residence address; (2) the email address and/or mobile telephone number associated with your account; and (3) a clear statement that you want to opt out of this Agreement to Arbitrate.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of Section 1 above will be null and void as to that Dispute.
This Agreement to Arbitrate will survive the termination of your relationship with us.
2. Unless you and we agree otherwise, if you opt out of the Agreement to Arbitrate, if the Agreement to Arbitrate is found by a court to be unenforceable, if your claim is not covered by the Agreement to Arbitrate, or if you neither are a resident of nor have a principal place of business in the US or Canada, you agree that any Dispute that has arisen, or may arise, between you and us must be resolved exclusively by a state or federal court located in Los Angeles, California. You and we agree to submit to the personal jurisdiction of the courts located within Los Angeles, California for the purpose of litigating all such claims or disputes.
3 Notwithstanding any provision in the Agreement to the contrary, you and we agree that if we make a change to this Agreement to Arbitrate (other than a change to the notice address or the site link provided herein) in the future, that change shall not apply to a claim that was filed in a legal proceeding between you and us prior to the effective date of the change. The change shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen, or may arise, between you and us. We will notify you of a change to this Agreement to Arbitrate by posting the amended terms on our Services at least 30 days before the effective date of the change and/or by email.
We may be required by state or federal law to notify you of certain events. You hereby acknowledge and agree that such notices will be effective upon our posting them in the relevant Service or delivering them to you via email. You may update your email address by visiting the Services where you have provided contact information. If you do not provide us with accurate information, we will not be responsible for failure to notify you. Our failure to exercise or enforce any right or provision in this Agreement will not constitute a waiver of such right or provision. This Agreement, including all additional terms, conditions, and policies on the Services, constitute the entire agreement between you and us and supersede all prior agreements with respect to the subject matter hereof. Nothing in this Agreement affects any non-waivable statutory rights that apply to you. If any part of this Agreement is determined to be invalid or unenforceable under applicable law, that provision will be removed or limited to the minimum extent such that the remainder of this Agreement will continue to be valid and enforceable.
If you do not agree to this Agreement, you should immediately stop using the Services. If you want to delete your account on a Service, please use contact instructions posted on the Service at which you obtained the account. Any User Submissions you made while using the Services will continue to be governed by this Agreement.
This Agreement is effective until terminated. You may terminate this Agreement at any time by: (i) irretrievably erasing, deleting, or destroying all copies of the Content, Website or other Services in your possession or control; and (ii) ceasing to use the Services and Content available. We may terminate this Agreement at any time for any reason or no reason. All covenants, agreements, representations and warranties made in this Agreement, shall survive your acceptance of this Agreement and the termination of this Agreement; except that upon termination for any reason, all licenses granted by us to you will immediately terminate.
Communications relating to the Services or otherwise referenced within this Agreement may be directed to [email protected]