PLEASE BE AWARE THAT SECTION 13 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
The Services consist of the following, without limitation: brand management solution designed to enable brands to upload, organize, manage and share brand assets, style guides and collateral in one location.
1. Use of the Services and SHO Properties. The Platform, Services, and the information and content available on the Platform and Services (as these terms are defined herein) (collectively, the “SHO Properties”) are protected by copyright laws throughout the world. SHO hereby grants to you during the term of these Terms the non-exclusive right and license to access and use the Services solely for your and/or the Brand’s internal business purposes, and subject to any restrictions set forth in the Brand Agreement.
1.1 Updates. You understand that SHO Properties are evolving. As a result, SHO may require you to accept updates to SHO Properties that you have installed on your computer. You acknowledge and agree that SHO may update SHO Properties with or without notifying you. You may need to update third-party software from time to time in order to use SHO Properties.
1.2 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit SHO Properties or any portion of SHO Properties, including the Platform, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other SHO Properties (including images, text, page layout or form) of SHO; (c) you shall not use any metatags or other “hidden text” using SHO’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of SHO Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained within the Platform (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access SHO Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of SHO Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in SHO Properties. Any future release, update or other addition to SHO Properties shall be subject to the Terms. Sho, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of SHO Properties terminates the licenses granted by SHO pursuant to the Terms.
1.3 Third-Party Materials. As a part of SHO Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for SHO to monitor such materials and that you access these materials at your own risk.
2.1 Registering Your Account. In order to access certain features of SHO Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Platform (“Account”). You may only become a Registered User if your employer or partner who is authorized to provide you access to the SHO Properties (“Brand”) already subscribes to the Services via a separate agreement between SHO and such Brand (“Brand Agreement”). Your Account will be terminated or suspended on the date that the applicable Brand Agreement is terminated or suspended.
2.2 Registration Data. In registering an Account, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using SHO Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account.
2.3 Limits. We reserve the right to monitor use of the Services and to deactivate or terminate your rights to use the Services (including your Account) if your usage behavior exceeds normal limits or limits set forth in the Brand Agreement, as determined in our sole discretion.
2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to SHO Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing SHO Properties.
3. Responsibility for Content. You acknowledge that all files, materials, data, text, audio, video, images or other content, including SHO Properties (“Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not SHO, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through SHO Properties (“Your Content”).
4.1 SHO Properties. Except with respect to Your Content, you agree that SHO and its suppliers own all rights, title and interest in SHO Properties (including but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a SHO game client, and SHO game clients and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform, the Services, or SHO Properties
4.2 Trademarks. SHO and other related graphics, logos, service marks and trade names used on or in connection with SHO Properties or in connection with the Services are the trademarks of SHO and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in SHO Properties are the property of their respective owners.
4.3 License to Your Content. When you upload, submit, store, send or receive (“Make Available”) Your Content to or through the Services, you grant SHO a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our services), communicate, publish, publicly perform, publicly display and distribute such content solely to the extent necessary provide the Services. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services unless you delete Your Content. Make sure you have the necessary rights to grant us this license for any content that you submit to SHO. You agree that you, not Sho, are responsible for all of Your Content that you Make Available on or in SHO Properties.
4.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to SHO through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that SHO has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to SHO a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of SHO Properties.
5. User Conduct. As a condition of your use of the SHO Properties, you agree not to use SHO Properties for any purpose that is prohibited by the Terms or by applicable law. You will not use the Services to collect, upload, transmit, display, or distribute any Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
6. Investigations. SHO may, but is not obligated to, monitor or review SHO Properties and Content at any time. Without limiting the foregoing, SHO shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although SHO does not generally monitor user activity occurring in connection with SHO Properties or Content, if SHO becomes aware of any possible violations by you of any provision of the Terms, SHO reserves the right to investigate such violations, and SHO may, at its sole discretion, immediately terminate your license to use SHO Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. Third-Party Services. SHO Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left SHO Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of SHO. SHO is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. SHO provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8. Indemnification. You agree to indemnify and hold SHO, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “SHO Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, SHO Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. SHO reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with SHO in asserting any available defenses. This provision does not require you to indemnify any of the SHO Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to SHO Properties.
9. Disclaimer of Warranties and Conditions.
9.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SHO PROPERTIES IS AT YOUR SOLE RISK, AND SHO PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SHO PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
9.1.1 SHO PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SHO PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SHO PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SHO PROPERTIES WILL BE ACCURATE OR RELIABLE.
9.1.2 ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SHO PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS SHO PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
9.1.3 THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. SHO MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
9.1.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SHO OR THROUGH SHO PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.1.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SHO OR THROUGH SHO PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
9.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SHO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SHO PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE WEBSITE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10. Limitation of Liability.
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SHO PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH SHO PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT SHO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF SHO PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE SHO PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SHO PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SHO PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO SHO PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SHO PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SHO PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SHO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SHO PARTIES BE LIABLE TO YOU FOR MORE THAN ONE HUNDRED U.S. DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SHO PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A SHO PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A SHO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SHO AND YOU.
11. Term and Termination.
11.1 Term. . The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use SHO Properties, unless terminated earlier in accordance with the Terms.
11.2 Termination of Services by SHO.. Subject to any post-termination rights that may be agreed to pursuant to a Brand Agreement, SHO has the right to, immediately and without notice, suspend or terminate any Services provided to you, for any or no reason. You agree that all terminations for cause shall be made in SHO’s sole discretion and that SHO shall not be liable to you or any third party for any termination of your Account.
11.3 Termination of Services by You. If you want to terminate the Services provided by SHO, you may do so by closing your Account for all of the Services that you use.
11.4 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, subject to any continuing rights in the Brand Agreement, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. SHO will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
12. International Users.SHO Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that SHO intends to announce such Services or Content in your country. SHO Properties are controlled and offered by SHO from its facilities in the United States of America. SHO makes no representations that SHO Properties are appropriate or available for use in other locations. Those who access or use SHO Properties from other countries do so at their own volition and are responsible for compliance with local law.
13. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with SHO and limits the manner in which you can seek relief from us.
13.1 Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Platform, or to any aspect of your relationship with SHO, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or SHO may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH SHO, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST SHO ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE SHO IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
13.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, SHO will pay them for you. In addition, SHO will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, SHO will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and SHO. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
13.4 Waiver of Jury Trial. YOU AND SHO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and SHO are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
13.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 14.7.
13.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: SHO.AI, Inc., ________________________________________, or to the following e-mail address: email@example.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your SHO username (if any), the email address you used to set up your SHO account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
13.7 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with SHO.
13.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if SHO makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to SHO.
14. General Provisions.
14.1 Electronic Communications.The communications between you and SHO use electronic means, whether you visit SHO Properties or send SHO e-mails, or whether SHO posts notices on SHO Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from SHO in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SHO provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
14.2 Release.You hereby release SHO Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of SHO Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of SHO Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a SHO Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform or any Services.
14.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without SHO’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
14.4 Force Majeure. SHO shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to SHO Properties, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
14.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and SHO agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles, California.
14.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORINA CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
14.8 Notice. Where SHO requires that you provide an e-mail address, you are responsible for providing SHO with your most current e-mail address. In the event that the last e-mail address you provided to SHO is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, SHO’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to SHO at the following address: email@example.com. Such notice shall be deemed given when received by SHO by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
14.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
14.11 Export Control. You may not use, export, import, or transfer SHO Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained SHO Properties, and any other applicable laws. In particular, but without limitation, SHO Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using SHO Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use SHO Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by SHO are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer SHO products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
14.12 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.