topicalthunder.com TERMS AND CONDITIONS OF USE
EFFECTIVE MAY 5, 2016
PLEASE READ AND REVIEW THESE TERMS AND CONDITIONS OF USE (THE “TERMS”) CAREFULLY BEFORE USING topicalthunder.com (THE “SITE”). By using this Site, you agree to be bound by and comply with these Terms. The Site is owned and operated by Push Not (“Push Not,” “we,” “us,” or “our”). We may modify these Terms at any time by posting the modified Terms on this Site, so please review the Terms frequently. Your continued use of the Site following such posting will constitute your acceptance of the modified Terms. If you do not agree to these Terms or any modifications to these Terms, please immediately discontinue your use of the Site. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. PERMITTED USE.
You may use the Site and the features, information content, data and offerings on and from the Site (the “Content”) for personal and non-commercial purposes only. The Content may include the ability to receive browser notifications (which may include, but not be limited to, event-related notifications and advertisements or advertising offers from us or third parties). By enabling such notifications, expressly agree to receive such notifications.
3. OWNERSHIP; PROPRIETARY RIGHTS.
A. All trademarks appearing on the Site or within the Content are the property of their respective owners. All Site software, design, text, information, data, databases, images, illustrations, artwork, graphic material, or other copyrightable elements, the selection and arrangement thereof, and the Content, are the property of Push Not and/or its subsidiaries, affiliates, assigns, licensors or other respective owners. You acknowledge and agree that the Site and the Content are protected by copyrights, trademarks, service marks and other proprietary rights and laws. No copyrighted material or other content may be reproduced, modified, used to create derivative works, displayed, performed, published, distributed, disseminated, broadcasted or circulated to any third party (including, without limitation, the display and distribution of the Content via a third party website or other networked computer environment) without our express prior written consent or except as permitted by law. All rights reserved.
B. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Push Not’s copyright agent the written information specified below. (1) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) A description of the copyrighted work that you claim has been infringed upon; (3) A description of where the material that you claim is infringing is located on the Site; (4) Your address, telephone number, and email address; (5) A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (6) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Our agent for notice of claims of copyright infringement on the Site can be reached as follows: Push Not, Attn: Copyright Agent, 7 Penn Plaza, 370 Seventh Ave., Suite 1703, New York City, NY 10001.
4. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
A. THE SITE AND THE CONTENT ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITATION TO THE FORGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, PUSH NOT DISCLAIMS ANY WARRANTIES FOR (A) THE RELIABILITY, TIMELINESS, OR ACCURACY OF THE CONTENT, (B) THE CONTENT RECEIVED THROUGH LINKS PROVIDED ON THE SITE, AND (C) OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SITE OR WITHIN THE CONTENT. PUSH NOT DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS, AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH YOUR USE OF THE SITE AND ANY CONTENT.
B. YOU EXPRESSLY UNDERSTAND AND AGREE THAT PUSH NOT DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, RELIABILITY, OR OPERABILITY OR AVAILABILITY OF THE CONTENT. PUSH NOT DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. PUSH NOT DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM ACCESSING THE SITE OR THE CONTENT, INCLUDING, WITHOUT LIMITATION, FOR HARM CAUSED BY VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
C. TO THE EXTENT PERMITTED BY LAW, NEITHER PUSH NOT NOR ANY OF ITS LICENSORS WILL BE LIABLE TO YOU OR TO ANY OTHER PARTY UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER THEORY IN LAW OR EQUITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS OR DATA IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE SITE, THE CONTENT, OR ANY INFORMATION, DATA, OR OTHER CONTENT ON THE SITE (EVEN IF WE OR OUR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL PUSH NOT OR ITS LICENSORS BE LIABLE TO YOU ON ACCOUNT OF YOUR RELIANCE ON ANY CONTENT.
D. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASES, PUSH NOT’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
You agree to indemnify, defend, and hold Push Not, its affiliated companies, contractors, employees, agents, third-party suppliers, licensors, and partners harmless from any and all claims, losses, damages, liabilities, including legal fees and expenses, arising out of your violation of these Terms or your use or misuse of the Site or the Content. Push Not reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Push Not, and you agree to cooperate with Push Not’s defense of these claims.
6. DISPUTE RESOLUTION AND ARBITRATION
a. Generally. These Terms shall be interpreted and enforced in all respects under the laws of the State of Missouri, USA, as applicable to contracts to be performed entirely within the State of Missouri, USA. In the interest of resolving disputes between you and Push Not in the most expedient and cost effective manner, you and Push Not agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, You and Push Not are each waiving the right to a trial by jury or to participate in a class action. In the event that the agreement to arbitrate is found not to apply to a claim, you and Push Not agree that any judicial proceeding will be brought in the state or federal courts located in Kansas City, Missouri.
b. Notwithstanding subsection (a), you and Push Not agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
c. Arbitrator. Any arbitration between you and Push Not will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”) of the American Arbitration Association (the “AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Push Not.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Push Not’s address for notice is: Push Not, Attention: Legal, 7 Penn Plaza, 370 Seventh Ave., Suite 1703, New York City, NY 10001. The Notice must (i) describe the nature and basis of the claim or dispute, and (ii) set forth the specific relief sought (“Demand”). You and Push Not agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Push Not may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Push Not shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Push Not shall pay you the greater of (a) the amount awarded by the arbitrator, if any, or (b) the greatest amount offered by Push Not in settlement of the dispute prior to the arbitrator's award.
e. Fees. In the event that you commence arbitration in accordance with these Terms, Push Not will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Kansas City, Missouri, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Push Not for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
f. No class actions. YOU AND PUSH NOT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Push Not agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.