PLEASE READ THESE TERMS OF SERVICE CAREFULLY – THIS IS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS.
The Terms of Service pertain to all current and future online and mobile websites, platforms, services, applications and networks owned or operated by Circle of Blue (including the www.circleofblue.org website) and/or for which Circle of Blue currently or in the future provides service and/or technology (the “Site” or “Sites”) and all current and future services that it provides on or in connection with the Site (“Online Services”). You accept and agree to be bound by the Terms of Service when you view or access Content or otherwise use any of the Sites or Online Services, without limitation.
THE TERMS OF SERVICE ARE SUBJECT TO BINDING ARBITRATION, A WAIVER OF CLASS ACTION RIGHTS AND A WAIVER OF A TRIAL BY JURY AS DETAILED BELOW. BY USING THE SITE OR ANY ONLINE SERVICES YOU AGREE TO THE TERMS OF SERVICE. By using this Site, a binding contract is formed between you and Circle of Blue, as set forth in these Terms of Service. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT USE THE SITE OR THE ONLINE SERVICES.
- AGREEMENT TO TERMS OF SERVICE
- Acceptance of Terms of Service
The Terms of Service, along with any additional terms and conditions that are referenced herein or that are presented elsewhere on the Site in relation to a specific service or feature (collectively, “Terms of Service”) and the , set forth the terms and conditions that apply to your use of the www.vector-center.com Site. By using the Site, you agree to comply with all of the terms and conditions.
EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE ONLINE SERVICES YOU ARE ENTERING INTO A NEW AGREEMENT WITH CIRCLE OF BLUE ON THE THEN APPLICABLE TERMS AND CONDITIONS. YOUR USE OF THE ONLINE SERVICES AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE THEN EXISTING TERMS FOR YOUR NEW USE AND TRANSACTIONS.
If you do not agree to the Terms of Service, you should not access or use the Site. By using this Site or Online Services you will be deemed to have irrevocably agreed to these Terms of Service. This is a general audience Site for adults. We will assume (and by using this Site you warrant that) you have legal capacity to enter into the agreement set out in these Terms of Service (i.e., that you are of sufficient age and mental capacity and are otherwise entitled to be legally bound in contract).
- Changes to Terms of Service
Circle of Blue may modify the Terms of Service, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your use of the Site or Online Services after such posting shall be deemed to constitute acceptance by you of such modifications, additions or deletions. You agree to be notified of changes to the Terms of Service via posting of updates on the Site.
- Changes to Site
Circle of Blue at its sole discretion may change or discontinue any aspect, service or feature of the Site or Online Services at any time, including, but not limited to, content, hours of availability, and equipment needed for access or use.
You understand and agree that the Site and/or Online Services may include a social network and your activities (e.g., video viewing, interactions with members) may be shared with others both on and off the Online Services. If you don’t want your activities on such social network to be shared, your only option is to deactivate the related social network account.
- Permitted Uses
This section details permitted uses and prohibited uses. This applies to you unless Circle of Blue expressly grants you different Terms of Service by written contract.
Your use of the Online Services shall be limited solely to your personal and non-commercial use. The Online Services contain material that is derived in whole or in part from material supplied and owned by Circle of Blue as well as third parties (“Content”). Your use of the Online Services is limited to the access, viewing and downloading of Content, as solely authorized by Circle of Blue. You may only use this Site and its Content for lawful purposes and in accordance with applicable law.
Nothing in the Terms of Service shall be deemed to convey to you any license, right, title or interest in or to the Site or Online Services or Content or to any portion thereof except for the limited rights expressly granted herein.
When using the Online Services, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Online Services.
PROHIBITIONS – NO USE GRANTED FOR THE FOLLOWING:
You may not either directly or through the use of any personal computer, browser, laptop, tablet, mobile phone or other device (each a “device”) or other means remove, alter, bypass, avoid, interfere with, or circumvent (i) any copyright, trademark, patent or other proprietary notices marked on the Site, Online Services or Content, (ii) any digital rights management (DRM) mechanism, device, or other content protection or access control measure associated with the Site, Online Services or Content. You may not either directly or through the use of any device or other means copy, download, stream, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, transmit or retransmit the Site, Online Services or Content. You may not incorporate Content into, or stream or retransmit the Content via, any hardware or software application or make the Online Services or any Content available via frames, and you may not otherwise surround or obfuscate the Content or Online Services with any third party content, materials or branding. You may also not use any software robots, spider, crawlers, or other data gathering or extraction tools, whether automated or manual, to access, acquire, copy, monitor or display Content or any portion of the Online Services. To the extent that Circle of Blue makes Content available to you via a widget, embedded player or other technology that allows you to embed or stream Content on or to another site, you may not modify, enhance, remove, interfere with, or otherwise alter in any way any portion of such technology, any digital rights management mechanism, device, or other content protection or access control measure associated with Content. You are prohibited from disabling, modifying, interfering with or otherwise circumventing any technology to allow users to view Content without: (i) displaying visibly both Content and all surrounding elements including the graphical user interface, copyright notices, patent markings and trademarks; and (ii) having full access to all functionality permitting viewing of Content, including, without limitation, all photography, video quality and display functionality.
You may not knowingly or intentionally take any action that may impose an unreasonable burden or load on the Online Services or its servers and infrastructures. You may not build a business, in whole or in part, resell, redistribute or recirculate or make any other commercial use of, or create derivative works or materials utilizing any portion of the Online Services or Content, whether for profit or not for profit.
You are prohibited from storing, distributing or transmitting any unlawful material through this Site. You may not collect or store personal information regarding other users.
You recognize that storing, distributing or transmitting unlawful material could expose you to criminal and/or civil liability. You agree that if a third party claims that material you have contributed to the Online Services is unlawful, you will bear the burden of establishing that it is lawful. You understand and agree that all materials publicly posted or privately transmitted on or through this Site or Online Services are the sole responsibility of the sender, not Circle of Blue, and that you are responsible for all material you upload, publicly post or otherwise transmit to or through this Site or Online Services.
- Links By You To the Online Services
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Online Services and Content, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with or endorsement by Circle of Blue or cause any other confusion regarding your relationship to Circle of Blue or its affiliates or to the Online Services, (c) the link must open in a new browser window and link to the full version of applicable Online Services or Site webpage(s); and (d) the links and the content on your website do not portray Circle of Blue or its affiliates or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Circle of Blue. Circle of Blue reserves the right to suspend or prohibit linking to the Online Services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
- Social Media Plug-Ins
Social media plug-ins of social networks such as Facebook, Twitter and Google Plus (and others) may be integrated on our Site and other Online Services. Where our Online Services contain a plug-in to a social network, these are clearly marked (e.g. with a Facebook® or Twitter® button). If you chose to click on one of these buttons or links, your browser connects directly to the servers of the relevant social network. The social network directly transmits the content of the plugin to your browser. If you are registered on the relevant social network and logged into your respective account the social network receives the information that the webpage was used by you. If you interact with a social network plug-in (e.g. you press the Facebook® “Like” feature, the Twitter® “Tweet this” feature and Google® Plus “1+” button or equivalent) or add a comment on the appropriate web page, the corresponding information is directly transmitted to the relevant social network from your browser. If you are not registered with the social network or you are logged out before you visit our Online Services, there is the possibility that at least your IP address will be submitted to and stored by the social network. If you interact with us through a social media platform, plug-in etc., then you may be permitting us to have on-going access to certain information from your social network profile (such as name, social networking id page, email address, photo, gender, location, the people/sites you follow etc.).
- Mobile / Wireless Features
The Online Services may offer certain features and services that are available to you via your wireless mobile device. These features and services may include the ability to access the Online Services’ features and upload content to the Online Services, receive messages from the Online Services, and download applications to your mobile device (collectively, “Mobile Features”). Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. In addition, your carrier may charge you for standard messaging, data, and other fees to participate in Mobile Features. Circle of Blue has no responsibility or liability for any fees or charges you incur when using Mobile Features. You should check with your carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your carrier with any other questions regarding these issues.
Terms of Mobile Features. If you register for any Mobile Features then you agree that, in connection with those Mobile Features, we may send communications to your mobile device. Further, we may collect information related to your use of the Mobile Features. If you have registered via the Online Services for Mobile Features, then you agree to notify Circle of Blue of any changes to your mobile contact information (including phone number) and update your accounts on the Online Services to reflect the changes.
Location-Based Features. For Online Services on mobile devices (“Mobile Apps”) when you use one of our location-enabled services, we may collect and process information about your actual location. Some of the Mobile Apps or Online Services require your location information for the feature to work. If you have enabled GPS, geo-location or other location-based features on a mobile device, you acknowledge that your device location will be tracked and your location information may be shared with others. If any Circle of Blue Mobile App collects precise information about the location of your devices, it may be used to provide requested location services, and, depending on the particular Mobile App it may also be used to allow tagging or to check-in.
Some Mobile App(s) or feature(s) allow for you to disable location-based features or manage preferences related to them. However, you can terminate device location tracking by us by uninstalling any Mobile App(s) or feature(s). The location-based services offered in connection with our Mobile App(s) or feature(s) are for individual use only and should not be used or relied on as an emergency locator system, used while driving or operating vehicles, or used in connection with any hazardous environments requiring fail-safe performance, or any other situation in which the failure or inaccuracy of use of the location-based services could lead directly to death, personal injury, or severe physical or property damage.
- User Content and Community Guidelines
- User Content
The following terms apply to content submitted by users (“User Content”), and user conduct, on the Site’s interactive areas.
- Grant of Limited License
If you post or upload any content to the Site (“User Content”), you automatically grant Circle of Blue (including without limitation, its licensees, affiliates, successors and assigns) a worldwide, royalty-free, perpetual, irrevocable, sub-licensable, non-exclusive right and license, but not an obligation, to use, publish, modify, adapt, edit, translate, reproduce, publicly display, publicly perform, sublicense, distribute, incorporate into other works, and otherwise exploit, in whole or in part, in any form, media, technology now known or hereafter developed, including creating derivative works from, such User Content. Without in any way limiting the foregoing, you acknowledge and agree that Circle of Blue, its licensees, affiliates, successors and assigns, shall have the right to sell, license, assign and otherwise transfer any and all of the rights granted by you to Circle of Blue under these Terms of Service. You acknowledge and agree that Circle of Blue, its licensees, affiliates, successors and assigns, will be entitled to retain any and all revenue generated from any sales, licenses, assignments and other transfers of the rights granted by you hereunder. Nothing in these Terms of Service obligates or may be deemed to obligate Circle of Blue or any other person or entity to exercise any of the rights granted by you under these Terms of Service.
You represent and warrant to Circle of Blue that you have the full legal right, power and authority to grant to Circle of Blue the license provided for herein, that you own or control the complete exhibition and other rights to the User Content you submitted for the purposes contemplated in this license and that neither the User Content nor the exercise of the rights granted herein shall violate these Terms of Service, or infringe upon any rights, including infringement of anyone’s intellectual property rights, the right of privacy or right of publicity, constitute a libel or slander against, or violate any federal, state, common law or any other right of, or cause injury to, any person or entity. You further grant Circle of Blue the right, but not the obligation, to pursue at law any person or entity that violates your or Circle of Blue ‘s rights in the User Content by a breach of these Terms of Service. If it is determined that you retain moral rights (including rights of attribution or integrity) in the User Content, you hereby declare that (a) you do not require that any personally identifying information be used in connection with the User Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the User Content by Circle of Blue or its licensees, successors and assigns; (c) you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the User Content; and (d) you forever release Circle of Blue, and its licensees, successors and assigns, from any claims that you could otherwise assert against Circle of Blue by virtue of any such moral rights. You also permit any other user to access, view, store or reproduce the User Content for that user’s personal use.
- User Content – General
- Liability for User Content: Circle of Blue, its officers, directors, employees, representatives, subsidiaries and/or affiliates are not liable for any User Content, including without limitation its accuracy or decency, or opinions expressed in User Content. User Content does not reflect the views of Circle of Blue. By allowing User Content to be submitted to the Site, Circle of Blue does not endorse any User Content in any way. The user providing User Content is solely responsible for his/her own User Content. This means that you, and not Circle of Blue, are entirely responsible and liable for any claims, loss or damages relating to all User Content that you upload, post, email or otherwise transmit via the Online Services.
- Actions with User Content Once Submitted: User Content will not be returned. Once you upload User Content, you may not be able to delete it. You agree that Circle of Blue, its licensees, successors and/or assigns, shall have no obligation to attribute authorship to or give you or any third parties credit for User Content, but in their sole discretion may elect to do so. While we may offer you the ability to post User Content anonymously, your account information relating to your User Content is still stored by us. Other users may be able to request email notifications of your public User Content or publish their own comments to your comments. Circle of Blue reserves the right to use any User Content as it deems appropriate, including, without limitation, deleting, editing, modifying, rejecting, or refusing to post it. Circle of Blue is under no obligation to edit, delete or otherwise modify User Content once it has been submitted to Circle of Blue.
- No Payment: You agree that Circle of Blue will not pay you for any User Content. You understand that no industry custom or practice changes your agreement that you will not be paid for any User Content.
- Consent: By posting User Content on the Online Services, you consent to the recording, use and reuse by Circle of Blue, its licensees, successors and assigns. This includes consent to the use of your writings, images, videos, voice, actions, likeness, name, appearance, profile photograph, performance, biographical material, and any other identifying information, including, without limitation, any information contained in your User Content (collectively, “Personal Elements”), as used, edited, altered, fictionalized or modified by Circle of Blue, in its sole discretion, in any and all media now known or hereafter devised, throughout the world, in perpetuity, including, without limitation, in and in connection with Circle of Blue Sites or Online Services, or publicity.
- Monitoring: Circle of Blue does not investigate, monitor or check for accuracy, decency or completeness of User Content. You understand that by using the Site or Online Services, you may be exposed to User Content that is offensive, indecent, or objectionable. Circle of Blue has the right, but not the obligation, to monitor User Content posted or uploaded to the Site to determine compliance with these Terms of Service and to satisfy any law, regulation or authorized government request. During monitoring, any information relating to any user or their respective activities on the Online Services may be examined, recorded, copied, and used for authorized purposes, and Circle of Blue may share personally identifiable information in response to a law enforcement agency’s request, or where we believe it is necessary, or as otherwise required or permitted by law. Although Circle of Blue has no obligation to monitor, screen, edit or remove any of the User Content posted or uploaded to the Site, Circle of Blue reserves the right, and has absolute discretion, to screen, edit, refuse to post or remove without notice any User Content posted or uploaded to the Site at any time and for any reason. You are solely responsible for creating backup copies of and replacing any content that you elect to post to the Site at your sole cost and expense. Circle of Blue will not provide you with copies of User Content. The decision by Circle of Blue to monitor, delete and/or modify User Content does not constitute nor shall it be deemed to constitute any responsibility or liability in any manner on the part of Circle of Blue in connection with or arising from use by you of interactive areas on the Site.
- Ownership:Except as expressly set forth in these Terms of Service, you shall continue to own all rights in and to your postings of User Content. To the extent your User Content contains other materials or elements owned by Circle of Blue or any other affiliated organization, such as content protected by copyright, patent, trademark or other laws, your rights to make any other use of the User Content will continue to be governed by and may be limited by other applicable laws, the rights of third parties and Circle of Blue.
- Idea Submissions:Circle of Blue accepts unsolicited submissions for articles. However, if you decide to make any such unsolicited submission, you hereby grant to Circle of Blue the right and license to the submission as User Content as specifically set forth herein. Circle of Blue’s receipt of your ideas and materials is not an admission by Circle of Blue of their novelty, priority, or originality, and it does not impair Circle of Blue’s right to contest existing or future intellectual property rights relating to your unsolicited ideas and materials. Circle of Blue will not treat any such submissions as confidential.
- Interactive Areas
The Site may contain comments sections, discussion forums, or other interactive features in which you may post or upload user-generated content, including but not limited to text, comments, images, video, photos, messages, other materials or items (collectively, “User Content”).
- Interactive Areas are available for individuals aged 13 years or older. By submitting User Content to an Interactive Area, you represent that you are 13 years of age or older and, if you are under the age of 18, you either are an emancipated minor, or have obtained the legal consent of your parent or legal guardian to enter into these Terms of Service, submit content, participate on the Site, and fulfill the obligations set forth in these Terms of Service.
- You are solely responsible for your use of any Interactive Areas and you use them at your own risk.
- Community Guidelines
By submitting any User Content or participating in an Interactive Area within or in connection with the Site, you agree to abide by the following rules of conduct:
The Community Guidelines rules are a condition of your use of and access to the Online Services. You are responsible for the content of your communications.
- Be decent.
- Be respectful to others.
- No illegal or harmful activity.
- Comments may be deleted if they discriminate on the basis of race, creed, color, ethnicity, national origin, religion, sex, sexual orientation, gender expression, age, height, weight, physical or mental ability.
- You are solely responsible for your conduct and content.
- Circle of Blue is not responsible for your conduct and your content.
No uploading, posting or otherwise transmitting illegal User Content:
- You agree not to engage in activity that would constitute a criminal offense or give rise to a civil liability.
- You agree not to interfere with any other user’s right to privacy, including by harvesting or collecting personally-identifiable information about the Site users or posting private information about a third party.
- You agree not to upload, post or otherwise transmit any User Content, software or other materials which contain a virus or any computer code or other harmful or disruptive component that is designed or intended to disrupt, damage, or limit the functioning of the Site, any Online Service, or to obtain unauthorized access to the Online Service or Content or any data or other information of any third party.
- You agree not to upload, post or otherwise transmit unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, indecent or otherwise inappropriate content of any kind, including without limitation, any images or other material of a sexual nature.
- You may not use the Online Services, Content or any information contained therein for any unlawful purpose, and you may not encourage conduct that would constitute a criminal offense or give rise to civil liability.
- You may not use any Online Services in connection with any site or other use that contains or is associated with information or Content prohibited by this section.
No uploading, posting or otherwise transmitting harmful User Content that:
- Violates or infringes in any way upon the rights of others, including any statements which may defame, harass, stalk or threaten others.
- Bullies, threatens, abuses, harasses, or invades the privacy of any third party.
- You know to be false, misleading or inaccurate.
- Impersonates or falsely states or otherwise misrepresents your professional or other affiliation with any other person or entity.
- Contains blatant expressions of bigotry, racism, racially or ethnically offensive content, hate speech, abusiveness, vulgarity or profanity.
- Contains or advocates pornography or sexually explicit content, pedophilia, incest, bestiality, or that is otherwise obscene or lewd.
- Violates any law or advocates or provides instruction on dangerous, illegal, or predatory acts, or discusses illegal activities with the intent to commit them.
- Advocates violent behavior.
- Poses a reasonable threat to personal or public safety.
- Contains violent images of killing or physical abuse that appear to have been captured solely, or principally, for exploitive, prurient, or gratuitous purposes.
- Is protected by copyright, patent, trademark, trade secret, right of publicity or other proprietary intellectual property right (collectively “intellectual property right”) without the express permission of the owner of such intellectual property right. The burden of determining that any User Content is not protected by intellectual property right rests with you. You shall be solely liable for any damage resulting from any infringement of such intellectual property right or any other harm resulting from such a submission.
- You agree that if necessary, you have the consent of each and every identifiable natural person in any submission to use such persons name or likeness in the manner contemplated by the Site.
- You agree that any person who appears in your submission who is a current member of the Screen Actors Guild (SAG), the American Federation of Television and Radio Actors (AFTRA) or any other rights society is not entitled to compensation by Circle of Blue.
- You agree not to impersonate any person or entity, including, but not limited to, Circle of Blue or any Circle of Blue employee, or falsely state or otherwise misrepresent your affiliation with any person or entity.
No uploading, posting or otherwise transmitting User Content that:
- Does not generally pertain to the designated topic or theme of any Interactive Area.
- Contains any unsolicited or unauthorized advertising or promotional materials with respect to products or services, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
- Any conduct that in Circle of Blue’s sole discretion restricts or inhibits anyone else from using or enjoying the Site will not be permitted.
- You agree not to use any technology, service or automated system to post more User Content than an individual could upload in a given period of time. You also agree not to direct any third party to use these services, technologies or automated systems on your behalf.
- You agree not to represent or suggest, directly or indirectly, Circle of Blue’s endorsement of User Content.
- You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the Site, use the Site, or access to the Site.
- You agree not to interfere with or disrupt the Site or the servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site.
- You agree not to use any service, technology or automated system to artificially inflate the page views that your User Content receives. This includes pay-per-click services, web “robots” and any other current or future technologies. You also agree not to direct any third party to use these services, technologies or automated systems on your behalf.
Any person determined by Circle of Blue, in its sole discretion, to have violated these Community Guidelines, shall be barred from submitting or posting any further material on the Site. Circle of Blue reserves the right in its sole discretion to remove or edit User Content by you and to terminate Your Account for any reason.
Circle of Blue does not vouch for the accuracy or credibility of any User Content, and does not take any responsibility or assume any liability for any actions you may take as a result of reading User Content posted on the Site. Through your use of Interactive Areas, you may be exposed to content that you may find offensive, indecent, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using Interactive Areas, you assume all associated risks.
We may require, at any time, proof that you are following these rules. We reserve the right to take, or refrain from taking, any and all steps available to us, including suspending or terminating your access to the Online Services or seeking other legal or equitable remedies, once we become aware of any violation of these provisions.
Children’s Online Privacy Protection Act Notification
- Third Party Content
Circle of Blue may be a licensee or distributor (and not a publisher or creator) of content supplied by third parties. In other instances, Circle of Blue may provide hyperlinks or other identifying pointers or data to third party Content and/or to websites of other persons or entities (“Third-Party Websites”).
THE THIRD-PARTY WEBSITES ARE NOT CONTROLLED BY CIRCLE OF BLUE. CIRCLE OF BLUE MAKES NO WARRANTIES OR CONDITIONS REGARDING SUCH THIRD-PARTY WEBSITES. CIRCLE OF BLUE HAS NO RESPONSIBILITY FOR THE CONTENTS OF SUCH THIRD-PARTY WEBSITES. CIRCLE OF BLUE IS NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR USE OF OR RELIANCE ON SUCH THIRD-PARTY WEBSITES. YOUR USE OF THIRD-PARTY WEBSITES IS AT YOUR OWN RISK. THE INCLUSION ON THE SITE OF A LINK TO A THIRD-PARTY WEBSITE DOES NOT IMPLY AN ENDORSEMENT BY CIRCLE OF BLUE. WHEN YOU ACCESS ANY OF THESE THIRD-PARTY SITES, PLEASE UNDERSTAND THAT IF YOU VISIT THIRD-PARTY WEBSITES THEN YOUR RIGHTS AND OBLIGATIONS WHILE ACCESSING AND USING THOSE SITES WILL BE GOVERNED BY THE AGREEMENTS AND POLICIES RELATING TO THE USE OF THOSE SITES.
Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers or users of the Site, are those of the respective author(s) or distributor(s) and not of Circle of Blue. Neither Circle of Blue nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose.
In many instances, the Content available through the Site represents the opinions and judgments of the respective user or information provider not under contract with Circle of Blue. Circle of Blue neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on the Site by any third party. Under no circumstances will Circle of Blue be responsible or liable, directly or indirectly, for any loss or damage caused by your use or reliance on third party information obtained through the Site. Circle of Blue is not responsible for any actions or inaction on your part based on third party information that is presented on the Site. It is your responsibility to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other third party content available through the Site.
Nothing in these Terms of Service is intended to give you license, ownership, title or interest to third party content. Rights to use any third party content are determined by the third party, such as by any terms of service published on its website.
- Intellectual Property
Circle of Blue respects the intellectual property of others, and we require our users to do the same. This Site and materials incorporated by Circle of Blue on this Site are protected by copyrights, patents, trademarks, trade secrets or other proprietary rights owned or licensed by Circle of Blue.
As between Circle of Blue and you, Circle of Blue owns all right, title and interest in and to the copyrights, patents, trademarks, service marks, trade names, and all other intellectual and proprietary rights throughout the world associated with the Online Services and Content. You acknowledge Circle of Blue’s valid intellectual and proprietary property rights in the Online Services and Content.
Circle of Blue owns all rights to its logos and trademarks used in connection with the Site. All other logos and trademarks appearing on the Site are the property of their respective owners. You are not granted a license to use any trademarks.
The Site contains copyrighted material, including, but not limited to, works of art, articles, text, software, photos, images, video, graphics, music and sound, and the entire Contents of the Site are copyrighted as a collective work under the United States copyright laws. Circle of Blue owns copyright in the selection, coordination, arrangement and enhancement of such Content, as well as in the Content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Content, in whole or in part. You may download copyrighted material for your personal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of Circle of Blue and the copyright owner (if different from Circle of Blue). In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
Circle of Blue, pursuant to 17 U.S.C. Section 512 as amended by Title II of the Digital Millennium Copyright Act (the “Act”), reserves the right, but not the obligation, to terminate your license to use the Online Services if it determines in its sole and absolute discretion that you are involved in infringing activity, including alleged acts of first-time or repeat infringement, regardless of whether the material or activity is ultimately determined to be infringing. Circle of Blue accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. Therefore, in compliance with the Act, if you believe that any such third party materials infringe your intellectual property please send a written notice to the agent identified below to request a review of the alleged infringement including the following information required by the Act:
- 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 copyright 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 us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party;
- 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.
For copyright inquiries under the Digital Millennium Copyright Act please contact: email@example.com In addition, any written notice regarding any defamatory or infringing activity, whether of a copyright, patent, trademark or other proprietary right must include the following information:
- Your name, address, telephone number, and e-mail address;
- A physical or electronic signature of a person authorized to act on behalf of (1) the owner of an exclusive right that is allegedly infringed or (2) the person defamed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Online Services are covered by a single notification, a representative list of such works. Similarly, for materials that are defamatory or infringe patent, trademark, or other proprietary rights of a third party, please submit a list of such materials;
- Identification of the material that is claimed to be infringing, to be the subject of infringing activity, or that is claimed to be defamatory and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Circle of Blue to locate the material;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright or other proprietary right owner, its agent, or the law; and
- A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or on behalf of the person defamed.
For web posting, reprint, transcript or licensing requests for Circle of Blue material, please contact firstname.lastname@example.org.
By accessing the Site and/or the Online Services, you are not granted any patent rights, nor a license to use any patents or patented inventions of Circle of Blue beyond the specific limited uses granted in these Terms of Service.
You are solely responsible for obtaining and maintaining all connectivity, devices, computer software, hardware and other equipment and all internet service provider, mobile service, and other services needed for access to and use of the Site and all charges related to them.
Terms Applicable For Apple® iOS
If you are accessing or using the Online Services through an Apple® device, the following additional terms and conditions are applicable to you and are incorporated into the Terms of Service by this reference:
(a) To the extent that you are accessing the Online Services through an Apple® device, you acknowledge that these Terms of Service are entered into between you and Circle of Blue and, that Apple, Inc. (“Apple”) is not a party to these Terms of Service other than as third-party beneficiary as contemplated below.
(b) The license granted to you in Section 2 of these Terms of Service is subject to the permitted Usage Rules set forth in the App Store Terms (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Online Services.
(c) You acknowledge that Circle of Blue, and not Apple, is responsible for providing the Online Services and Content thereof.
(d) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the Online Services.
(e) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Online Services.
(f) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms of Service, you acknowledge that, solely as between Apple and Circle of Blue, Circle of Blue and not Apple is responsible for addressing any claims you may have relating to the Online Services, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Online Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. As set forth under these Terms of Service, Circle of Blue’s liability to you for use of the Online Services is greatly limited.
(g) Further, you agree that if the Online Services, or your possession and use of the Online Services, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(h) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as a third-party beneficiary thereof.
- Disclaimer of Warranty; Limitation of Liability
(A) YOU EXPRESSLY AGREE THAT USE OF THE SITE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CIRCLE OF BLUE, ITS LICENSEES, ASSIGNEES, AFFILIATES AND ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, REPRESENTATIVES, THIRD PARTY CONTENT PROVIDERS AND LICENSORS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CIRCLE OF BLUE DOES NOT WARRANT THAT THE ONLINE SERVICES, OR YOUR ACCESS TO OR USE OF THE ONLINE SERVICES WILL BE UNINTERRUPTED; FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS; MEET YOUR REQUIREMENTS; YIELD RELIABLE RESULTS; OR OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. CIRCLE OF BLUE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS SITE WILL BE AVAILABLE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
(B) THE SITE, INCLUDING, WITHOUT LIMITATION, ANY DOWNLOADABLE SOFTWARE, IS PROVIDED ON AN “AS IS” BASIS AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(C) CIRCLE OF BLUE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE SITE OR ANY WEB SITES LINKED TO THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CIRCLE OF BLUE MAKES NO WARRANTIES THAT YOUR USE OF THE MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT IN THE SITE OR ONLINE SERVICES WILL NOT INFRINGE THE RIGHTS OF OTHERS. CIRCLE OF BLUE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH MATERIALS, INFORMATION, SOFTWARE, FACILITIES, SERVICE OR OTHER CONTENT OF THE SITE OR ANY OTHER WEB SITE.
IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
(D) THE SITE MAY OFFER PUBLIC HEALTH AND OTHER SUCH INFORMATION, BUT SUCH INFORMATION IS DESIGNED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY. THE INFORMATION CONTAINED ON THE SITE DOES NOT AND IS NOT INTENDED TO CONVEY MEDICAL ADVICE AND DOES NOT CONSTITUTE THE PRACTICE OF MEDICINE. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. CIRCLE OF BLUE IS NOT RESPONSIBLE FOR ANY ACTIONS OR INACTION ON A USER’S PART BASED ON THE INFORMATION THAT IS PRESENTED IN THE SITE.
(E) TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT SHALL CIRCLE OF BLUE, OR ITS PRESENT OR FUTURE PARENTS OR AFFILIATED COMPANIES, BE LIABLE TO YOU FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER AND/OR DEVICE OR TECHNOLOGY FAILURE OR MALFUNCTION OR FOR ANY FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BASED ON ANY CAUSES OF ACTION ARISING OUT OF USE OF THE SITE, ONLINE SERVICES OR ANY ALLEGED FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, OR DELAY IN SERVICE, OPERATION, OR TRANSMISSION OF THE SITES OR ONLINE SERVICES, OR ANY ALLEGED COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OF PROPERTY, AND/OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF OR POSTING OF ANY RECORD, CONTENT, OR TECHNOLOGY, PERTAINING TO OR ON THE SITE OR ONLINE SERVICES. YOU AGREE THAT THIS LIMITATION OF LIABILITY APPLIES WHEHER SUCH ALLEGATIONS ARE FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR FALL UNDER ANY OTHER CAUSE OF ACTION, REGARDLESS OF THE BASIS UPON WHICH LIABILITY IS CLAIMED AND EVEN IF CIRCLE OF BLUE OR ITS PRESENT OR FUTURE AFFILIATED COMPANIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. WITHOUT LIMITING THE GENERALITY OF THE FORGEOING, YOU ALSO SPECIFICALLY ACKNOWLEDGE THAT CIRCLE OF BLUE AND/OR ITS PRESENT OR FUTURE AFFILIATED COMPANIES ARE NOT LIABLE FOR ANY ACTUAL OR ALLEGED DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OF THE SITES OR ANY OTHER THIRD PARTIES.
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
(F) Circle of Blue makes no representation that content on the Site or Online Services are appropriate or available for use outside the United States, its territories, possessions and protectorates. If you choose to access the Online Services from other locations you do so on your own initiative and at your own risk.
You are responsible for complying with local laws, if and to the extent local laws are applicable. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country in which you reside.
(G) Circle of Blue disclaims any and all liability of any kind for any unauthorized access to or use of your personally identifiable information. By accessing the Site, you acknowledge and agree to Circle of Blue’s disclaimer of any such liability. If you do not agree, you should not access or use the Site or Online Services.
You agree to defend, indemnify and hold harmless Circle of Blue, its affiliates and their respective directors, officers, employees, representatives and agents from and against any and all claims, demands, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable legal fees and costs) arising out of or accruing from (a) the use of the Site or Online Services by you or your Account, (b) any breach of these terms, including any of the foregoing provisions, representations or warranties, and/or from your placement or transmission of any User Content onto the Site; (c) any material posted or otherwise provided by you (including without limitation User Content), or any other subscriber or user of your Account that infringes any intellectual property right of any person or entity or defames any person or violates their rights of publicity or privacy; and (d) any misrepresentation made by you in connection with your use of the Online Services. Circle of Blue reserves the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this Section. In such event, you shall provide Circle of Blue with such cooperation as is reasonably requested by Circle of Blue.
Circle of Blue may terminate or suspend these Terms of Service at any time without notice to you. Without limiting the foregoing, Circle of Blue shall have the right to immediately terminate your account (or any part thereof) or use of the Online Services, or remove and discard any User Content or information stored, sent, or received via the Online Services without prior notice and for any reason or no reason, including, but not limited to: (i) permitting another person or entity to use your identification to access the Site or Online Services, (ii) any unauthorized use of the Online Services, (iii) any violation of these Terms of Service, or (iv) tampering with or alteration of any of the software, data files, and/or Content contained in or accessed through, the Online Services. You may terminate your account for any reason or no reason. Termination, suspension, or cancellation of these Terms of Service or your access rights to the Online Services shall not affect any right or relief to which Circle of Blue may be entitled, at law or in equity. Upon such termination, suspension, or cancellation, all rights granted to you will automatically terminate and immediately revert to Circle of Blue and its licensors and all rights granted by you to Circle of Blue shall survive in perpetuity.
- Exclusion of Damages
CIRCLE OF BLUE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) OR ANY DAMAGES WHATSOEVER THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE SITE OR ONLINE SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND EVEN IF CIRCLE OF BLUE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT CIRCLE OF BLUE SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITE OR ANY THIRD PARTY. WITHOUT LIMITING THE FOREGOING, CIRCLE OF BLUE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF (1) YOUR FAILURE TO COMPLY WITH THESE TERMS OF SERVICE OR (2) CONTENT POSTED TO THE SITE OR SERVICES BY YOU OR ANY THIRD PARTY.
IF YOU ARE ACCESSING A UNITED KINGDOM VERSION OF THE SITE, NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF EITHER PARTY OR THEIR SERVANTS, AGENTS OR EMPLOYEES.
- Limitation of Liability. Applicability of Disclaimers, Exclusions and Limits
IN NO EVENT WILL CIRCLE OF BLUE‘S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THE SITE AND SERVICE OR THESE TERMS EXCEED (A) THE AMOUNT (IF ANY) PAID BY YOU TO CIRCLE OF BLUE IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE LIABILITY; OR (B) ONE HUNDRED DOLLARS ($100), WHICHEVER IS LESS.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF DAMAGES, CIRCLE OF BLUE’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTION. IN ADDITION, BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, THE DISCLAIMERS SET FORTH ABOVE MAY NOT APPLY TO YOU. THIS PARAGRAPH WILL ONLY APPLY IF AN ARBITRATOR WITH APPLICABLE JURISDICTION FINDS EXCLUSIONS OF DAMAGES OR LIMITATIONS OF LIABILITY TO BE UNCONSCIONABLE.
- Export Control
Software from the Online Services may be subject to U.S. export controls. No software may be downloaded or otherwise exported or re-exported (A) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods, or (B) to anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By using the Online Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
- Binding Arbitration of All Disputes; No Class Relief
This Section is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. Circle of Blue and you agree that these Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. You and Circle of Blue agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement.
We agree that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements that you may have with us. Therefore, pursuant to these Terms of Service, if you have any dispute or disagreement with us regarding (i) your use of or interaction with the Site or other Online Services, (ii) any purchases or other transactions or relationships with Circle of Blue, or (iii) any data or information you may provide to Circle of Blue or that Circle of Blue may gather in connection with such use, interaction or transaction, you will not have the right to pursue a claim in court, or have a jury decide the claim and you will not have the right to bring or participate in any class action or similar proceeding in court or in arbitration. By using or interacting with the Site or other Online Service, you agree to binding arbitration as provided below.
In the event of a dispute, claim, or controversy arising out of or in connection with your access to, and/or use of the Site, and/or the provision of Content, Online Services, and/or technology on or through the Site, Circle of Blue or you must give the other notice of the dispute, claim, or controversy which notice will include a brief written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the dispute, claim, or controversy and the relief requested. You must send any such notice to Circle of Blue by email to email@example.com AND by U.S. Mail to Circle of Blue’s worldwide corporate headquarters in Traverse City, Michigan USA. To the extent that Circle of Blue has your contact information, it will send any such notice to you by U.S. Mail, or otherwise to your email address. Circle of Blue and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim, or controversy is sent. Circle of Blue and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, Circle of Blue or you may resort to the other alternatives described in this Section. Notwithstanding the foregoing, the notice and 30 day negotiation period required by this paragraph shall not apply, however, to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Sites.
Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between Circle of Blue and you arising under these Terms of Service or in connection with your access to, and/or use of the Site, and/or the provision of Content, Online Services, and/or technology on or through the Site, if unresolved through informal discussions within thirty (30) days of receipt of notice, shall be resolved by binding arbitration to be held in the state in which you reside. Notwithstanding the foregoing, disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Site shall not be subject to arbitration.
You further agree that:
(A) Arbitrator Will Interpret This Agreement. The Arbitrator, and not any federal, state or local court or agency, shall have the exclusive authority to resolve any dispute arising under or relating to the validity, interpretation, applicability, enforceability or formation of these Terms of Service and/or these arbitration provisions in Section hereof, including but not limited to any claim that all or any part of these Terms of Service is void or voidable;
(B) No Class Relief. The Arbitration can resolve only your and/or Circle of Blue’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
(C) Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
(D) Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, Circle of Blue will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
Circle of Blue shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $75,000, unless the arbitrator finds the arbitration to be frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, but not limited to attorney’s fees and expert witness costs unless Circle of Blue is otherwise specifically required to pay such fees under applicable law. For claims that total more than $75,000, the AAA Rules will govern payment of filing fees and arbitration fees. The decision of the arbitrator will be in writing and binding and conclusive on Circle of Blue and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Circle of Blue and you agree that dispositive motions, including without limitation, motions to dismiss and motions for summary judgment will be allowed in the arbitration. The arbitrator must follow these Terms of Service and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Circle of Blue and you understand that, absent this mandatory arbitration provision, Circle of Blue and you would have the right to sue in court and have a jury trial. Circle of Blue and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If your claim is solely for monetary relief of $10,000 or less, and does not include a request for any type of equitable remedy, you may choose whether the arbitration will be conducted solely based on documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules.
You may choose to pursue your claim in small claims court where jurisdiction and venue over Circle of Blue and you otherwise qualify for such small claims court and where your claim does not include a request for any type of equitable relief.
(E) Reasonable Attorney’s Fees. In the event you recover an Award greater than Circle of Blue’s last written settlement offer, the Arbitrator shall also have the right to include in the Award Circle of Blue’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but Circle of Blue shall in all events bear its own attorneys’ fees; and
(F) Interpretation and Enforcement of Arbitration Clause. With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Circle of Blue shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
(G) Non-U.S. Residents. For residents outside the United States, arbitration shall be initiated in Traverse City, Michigan, and Circle of Blue and you agree to submit to the personal jurisdiction of any state or federal court in Traverse City, Michigan to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
(H) Single Arbitrator. The arbitration shall be conducted by a single arbitrator, governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Service, and administered by the AAA. The AAA Rules and fee information are available at www.adr.org.
(I) Opt Out. You have the right to opt-out and not be bound by these arbitration provisions by sending written notice of your decision to opt-out to the following Email address firstname.lastname@example.org AND by U.S. Mail to Circle of Blue’s worldwide corporate headquarters in Traverse City, Michigan USA. The notice must be sent within the later of 30 days of your first use of the Site or within 30 days of changes to this Section being announced on the Site, otherwise you shall be bound to arbitrate any disputes, claims, or controversies in accordance with the terms of these paragraphs. If you opt-out of these arbitration provisions, Circle of Blue also will not be bound by them. If you do not affirmatively elect to opt out as described above, your use of the Site will be deemed to be your irrevocable acceptance of these Terms of Service and any changes/updates to this section or otherwise.
(J) If any clause within these arbitration provisions is found to be illegal or unenforceable, that specific clause will be severed from these arbitration provisions, and the remainder of the arbitration provisions will be given full force and effect. In the event some or all of these arbitration provisions are determined to be unenforceable for any reason, or if a claim, dispute or controversy is brought that is found by a court to be excluded from the scope of these arbitration provisions, Circle of Blue and you agree to waive, to the fullest extent allowed by law, any trial by jury.
(K) The terms of these arbitration provisions will also apply to any claims asserted by you against any present or future parent or affiliated company of Circle of Blue to the extent that any such claims arise out of your access to, and/or use of the Site, and/or the provision of Content, Online Services, and/or technology on or through the Site.
Dispute Resolution for Non-US Residents Only if a Tribunal has Ruled that Arbitration is Prohibited by Law
This applies to non-US Residents, where applicable law prohibits arbitration of disputes. If any controversy, allegation, or claim (including any non-contractual claim) arises out of or relates to the Online Services, the Content, these Terms of Service, whether heretofore or hereafter arising or to any of Circle of Blue’s actual or alleged intellectual property rights, then you and we agree to send a written notice to the other providing a reasonable description of the dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this section. Your notice to us must be sent to: by mail: Circle of Blue’s worldwide corporate headquarters in Traverse City, Michigan USA; By e-mail: email@example.com.
For a period of sixty (60) days from the date of receipt of notice from the other party, Circle of Blue and you will engage in a dialogue in order to attempt to resolve this dispute, though nothing will require either you or Circle of Blue to resolve this dispute on terms with respect to which you and Circle of Blue, in each of our sole discretion, are not comfortable.
(L) Injunctive Relief. The foregoing provisions of this section will not apply to any legal action taken by Circle of Blue to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Online Services, any Content, your User Content and/or Circle of Blue’s intellectual property rights, Circle of Blue’s operations, products and/or services.
- Class Action Waiver
Circle of Blue and you agree that Circle of Blue and you will resolve any disputes, claims or controversies on an individual basis, and that any claims brought under these Terms of Service in connection with the Site will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Circle of Blue and you further agree that Circle of Blue and you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising under these Terms of Service or in connection with the Site or Online Services.
If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court having jurisdiction for Traverse City, Michigan.
The terms of this provision will also apply to any claims asserted by you against any parent or affiliated company of Circle of Blue to the extent that any such claims arise out of your access to, and/or use of the Site, and/or the provision of content, services, and/or technology on or through the Site or Online Services.
- User Disputes
You are solely responsible for any interaction with other users of the Online Services, and Circle of Blue reserves the right, but shall have no obligation, to monitor disputes between you and any other user.
- Notice for California Users
Under California Civil Code Section 1789.3, California users of the Online Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
(a) Applicable law. These Terms of Service, any Additional Terms and the relationship between you and Circle of Blue shall be governed by the laws of the U.S. and the State of Michigan without regard to its conflicts of law provisions.
(b) Venue. Subject to the arbitration provisions above, and other than small claims actions as permitted therein, any action or proceeding arising from, relating to or in connection with these Terms of Service will be brought exclusively in the federal or state courts located in Traverse City, Michigan and you irrevocably consent to the personal jurisdiction of such courts and agree that it is a convenient forum and that you will not seek to transfer such action or proceeding to any other forum or jurisdiction, under the doctrine of forum non conveniens or otherwise.
(c) No Waiver. No failure or delay by Circle of Blue in exercising any right, power or privilege under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms of Service.
(d) Severability. Unless otherwise expressly provided herein, the invalidity or unenforceability of any provision of these Terms of Service will not affect the validity or enforceability of any other provision, all of which will remain in full force and effect.
(f) Paragraph and Section Titles are For Your Convenience. The paragraph or section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
(g) This is the Entire Agreement. These Terms of Service represent the entire understanding of the parties regarding its subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter, and may not be amended, altered or waived except in writing by the party to be charged.
(h) Assignment. These Terms of Service are binding upon and shall ensure to the benefit of parties and their respective successors, heirs, executor, administrators, personal representatives and permitted assigns. You shall not assign your rights or obligations hereunder without Circle of Blue’s prior written consent.
(i) Neither Circle of Blue nor you shall be liable for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, terrorism, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.