Terms of Use
Effective date: May 1, 2025
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE.
SUBJECT TO LIMITED EXCEPTIONS, THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT NEITHER PARTY WILL HAVE THE RIGHT FOR A JUDGE OR JURY TO DECIDE ITS CLAIMS OR TO BRING CLAIMS IN A CLASS ACTION OR OTHER CONSOLIDATED OR REPRESENTATIVE FORMAT.
Introduction
Welcome! These Terms of Use (“Terms”) govern your use of (a) the website located at jeffwestphal.org (both its mobile and online versions) (the “Site”), including all interactive features, widgets, plug-ins, applications, content, downloads and (b) all other online services owned by JRW Media LLC (“JRW Media,” “we,” “our,” or “us”) that post a link to these Terms (collectively with the Site, the “Service”)
Additionally, by using the Service, you acknowledge and accept our Privacy Policy and consent to the collection and use of your data in accordance therewith, as discussed further in Section 7.
If You Want to Use the Service, carefully read these Terms in their entirety (including all links to further details), as they constitute a written agreement between you and JRW Media and affect your legal rights and obligations.
By accessing and/or using the Service (other than to simply read these Terms), you are representing that you (a) are at least eighteen (18) years of age and have reached the age of majority in your jurisdiction of residence and (b) agree to be bound by and comply with these Terms. If you do not agree to these Terms, or if they are not enforceable where you are located, you are not permitted to use the Service.
If you are an individual using the Service on behalf of, or for the benefit of, any corporation, partnership, or other entity with which you are associated (an “Organization”), then you are agreeing to these Terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms. In that case, references to “you” and “your” in these Terms will refer to both the individual using the Service and to any such Organization.
The business realities associated with operating the Service are such that, without the conditions set forth in these Terms, we would not make the Service available to you. If you proceed to use the Service and later seek to repudiate these Terms or any aspect thereof, you agree that such action would constitute a breach of these Terms, prohibiting you from enforcing any aspect of the Terms and entitling us to damages resulting from your breach.
In some instances, additional or different guidelines, rules, or terms and conditions will apply to your use of particular aspects of the Service or to a service or product offered via the Service (“Additional Terms”). We may provide Additional Terms to you via postings, pop-up notices, and links on the Service, or by other reasonable means, including by email. All Additional Terms are hereby incorporated by reference into these Terms; as such, any reference to the “Terms” herein includes all Additional Terms. To the extent that there is a conflict between the terms herein and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
1. The Service
A. The Content
As used in these Terms, the “Content” refers to all contents of and materials available on the Service, including all (i) layout, information, articles, posts, text, data, files, images, scripts, designs, source and object code, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including ours (collectively, “Trademarks”); and (iii) other forms of intellectual property, including the name, image, likeness, attributes, voice, biography, and/or other personal identification of those featured on the Service. For clarification, the Content is an aspect of the Service, so any references to the “Service” in these Terms includes the “Content” unless stated otherwise.
B. Informational Purposes Only
The service is provided for general informational purposes only. no content is intended to constitute, or should be interpreted as, professional advice, whether medical, financial, legal, or otherwise. You agree that we are not responsible or liable for any consequences relating directly or indirectly to any action or inaction you take based on the information, services, or other material on the Service.
C. Ownership
The Service (including past, present, and future versions) is owned and controlled by JRW Media. All right, title, and interest in and to the Service is our property or the property of our licensors and may not be used or exploited in any manner absent express prior written consent.
D. Limited License
Subject to your strict compliance with these Terms, we grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) access and browse the Service on a personal computer, mobile phone, or other wireless or Internet enabled device that you own or are authorized to use (each, a “Device”) and (ii) download (temporary storage only) and/or print one copy of the Content, in all cases for your personal, non-commercial use only (the “Service License”). The Service License (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in our sole discretion, and without advance notice or liability to you.
E. Trademarks
The Service License does not grant you any rights to use the Trademarks. The absence of a trademark notice or symbol indicating the registration or ownership of a Trademark does not constitute a waiver of our or our licensors’ trademark or other rights. Under no circumstances are you permitted to use the Trademarks in a manner that creates a likelihood of consumer confusion.
F. Rights of Others
In using the Service, you must respect the intellectual property and other rights held by us and others. Your unauthorized use of the Service may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. You agree to comply with reasonable requests from us to help us protect our proprietary and intellectual property rights and those of our licensors and other users of the Service.
G. Litigation Purposes
The Service is intended for users genuinely interested in JRW Media’s Content and services. Under no circumstances may the Service be used for the purpose of, or with the intention of, initiating litigation or arbitration, including using the Service in order to trigger or induce an alleged violation of any law (“Litigation Purposes”). Use of the Service for Litigation Purposes is strictly prohibited, exceeds the parameters of the Service License, and, as such, constitutes a breach by you of these Terms. In such circumstances, JRW Media may elect to terminate these Terms, without prejudice to our ability to seek damages, including attorneys’ fees, resulting from your breach.
H. Reservation of Rights
These Terms include only narrow, limited grants of rights to access and use the Service. No other right or license may be construed under any legal theory, including by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by us and our licensors. Any unauthorized use of the Service for any purpose is prohibited.
2. User-Generated Content
A. General
We may offer users of the Service the opportunity to create, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, responses, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials (collectively, “User-Generated Content”). Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content, and you remain ultimately responsible for it.
B. Non-Confidentiality of Your User-Generated Content
Except as otherwise described in these Terms or our Privacy Policy, you agree that (a) your User-Generated Content will be treated as non-confidential – regardless of whether you mark it “confidential,” “proprietary,” or the like – and will not be returned, and (b) we do not assume any obligation of any kind to you or any third party with respect to your User-Generated Content.
You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content and do so at your own risk. In your communications with us, please keep in mind that we do not seek any unsolicited ideas or materials for the Service or our products or services, or suggested improvements to the same (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User-Generated Content and licensed to us as set forth below. In addition, we retain all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Our receipt of your Unsolicited Ideas and Materials is not an admission by us of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
C. License to Us of Your User-Generated Content
Except as otherwise described in any applicable Additional Terms, in consideration for the opportunity to use the Service, you hereby grant to us the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free/royalty-free right and license to use, copy, record, distribute, reproduce, disclose, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of any User-Generated Content that you submit (and derivative works thereof), for any purpose whatsoever, in any format, on or through any means or medium, and with any technology or devices, and to advertise, market, and promote the same (the “UGC License”).
Without limiting the preceding paragraph, the rights granted under the UGC License include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that, in exercising such rights, metadata, notices, and content may be removed or altered, including copyright management information, and you consent thereto.
In order to further effect the UGC License, you also hereby grant to us the right (but no obligation) to use the name you submit in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with our exercise of the rights granted in the UGC License.
By sharing User-Generated Content, you represent and warrant that you possess all rights necessary to grant the UGC License and any other consents and waivers referenced in this Section 2(c), and, upon our request, will furnish us with any documentation necessary to substantiate such rights. You understand that you will not receive any further consideration or any fees, sums, or remuneration for any of the rights granted under the UGC License.
D. User-Generated Content of other Users
All User-Generated Content on the Service is considered part of the Content. As such, aside from the limited right to access and use the Service granted in the Service License, you may not use or exploit User-Generated Content submitted by another party in any way without the prior written permission of the owner of such content.
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to hyperlink to the Service, so long as: (a) the link only incorporates text and does not use any Trademarks; (b) the link and the content on the originating website or service (“Originating Site”) does not suggest any affiliation with us or cause any other confusion; (c) you own the Originating Site or have authorization from the owner to establish the link; (d) the link and the content on the Originating Site does not portray us or our products or services in a false, misleading, derogatory, or otherwise offensive manner and does not contain content that you would be prohibited from submitting to the Service pursuant to these Terms; and (e) the link directs users to the homepage of the applicable JRW Media website. We reserve the right to suspend or prohibit linking to the Service for any reason, in our sole discretion, without advance notice or any liability of any kind to you or any third party.
A. Third-Party Sites
The Service may contain links to or other means of accessing websites, platforms, or services that are not owned, controlled, or operated by us (collectively, “Third-Party Sites”). We may have no control over the content, operations, policies, terms, or other elements of Third-Party Sites, and we do not assume any obligation to review any Third-Party Sites. We do not necessarily endorse, approve, or sponsor any Third-Party Sites, or any third-party content, advertising, information, materials, products, services, or other items contained thereon. Furthermore, we are not responsible for the quality or delivery of the products or services offered, accessed, or advertised at Third-Party Sites.
Under no circumstances will we be liable for any damages whatsoever caused by the exhibition, distribution, or exploitation of any information or content contained on Third-Party Sites. Any activities in which you engage in connection with any Third-Party Sites are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules established by the operator of the Third-Party Sites. We disclaim all liability in connection therewith.
B. Dealings with Third Parties
Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Third-Party Sites) are solely between you and the relevant third party. We disclaim all liability in connection therewith.
6. Video Content; Cookies
The Service may include video content, audiovisual content, or content of a like nature (collectively, “Video Content”). Video Content is solely provided for the purpose of enhancing the user experience on the Service and is, therefore, provided in connection with JRW Media’s business activities. We are not in the business of renting, selling, or delivering Video Content in a commercial manner. By using the Service, you agree that JRW Media is not a “video tape service provider,” as defined in the Video Privacy Protection Act (“VPPA”), 18 U.S.C.A. § 2710 or similar state laws.
Further, the Service may include online technologies and code-based tools, including cookies, pixels, web beacons, and software development kits, that track information about your activity on the Service (collectively, “Cookies”). Cookies may result in information about your activity on the Service being transmitted from your browser to JRW Media and to third parties, which, in turn, may result in the display of targeted advertisements on Third-Party Sites. Whether Cookies on the Service result in your browser’s transmission of information to third parties depends on a number of factors that may be outside of our knowledge or control, including what Third-Party Sites you use, what information you have provided to Third-Party Sites, and whether (and the extent to which) you have limited the use of Cookies by the operators of External Sites.
You hereby acknowledge and agree that, if Cookies on the Service result in your browser’s transmission of information to Third-Party Sites, (i) such transmissions do not constitute a “knowing disclosure” of “personally identifiable information” by JRW Media under the VPPA and (ii) you will not initiate any litigation or otherwise assert any claims against us based, in whole or in part, on such transmissions, whether under the VPPA, the California Invasion of Privacy Act (Cal. Penal Code § 630 et seq.), or any other statute, regulation, or cause of action.
8. Dispute Resolution; Agreement to Arbitrate
If there is any controversy, claim, action, or dispute between you and JRW Media arising out of or related to your use of the Service or the breach, enforcement, interpretation, or validity of these Terms or any part of them (“Dispute”), you and JRW Media agree to resolve the Dispute through the dispute resolution procedures set forth in this Section 8, even if the Dispute arose prior to the Effective Date of these Terms.
A. Informal Dispute Resolution
You and JRW Media agree to first attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve the Dispute informally. The party with the complaint (the “Complaining Party”) shall send written notice to the other party (the “Receiving Party”) describing the facts and circumstances of the Dispute (a “Dispute Notice”).
All Dispute Notices must: (1) be signed by the Complaining Party; (2) include the Complaining Party’s name, physical address, and email address; (3) describe with specificity the nature and basis of the Dispute in a manner sufficient for the Receiving Party to evaluate the merits of the Complaining Party’s individualized claim, and (4) set forth the alleged damage and harm suffered and the specific relief sought with a calculation for it. Each Dispute Notice is limited to a single Dispute between you and JRW Media. As such, your Dispute and the Disputes of other parties may not be combined into a single Dispute Notice.
Dispute Notices shall be sent to:
- To JRW Media: You must send notice (1) by electronic mail to legalnotices@jeffwestphal.com and (2) by first-class or certified mail to 445 Hamilton Ave., #700, White Plains, NY 10601.
- To You: We will send notice by (1) first class or certified mail to the physical address we have on file for you (if any) and (2) by email to the email address we have on file for you (if any). If we do not have any address on file for you, or if we are, for any reason, unable to provide notice via the contact information on file, we reserve the right to provide notice by any other reasonable means.
You and JRW Media will attempt to resolve the Dispute through informal negotiation within sixty (60) days beginning on the date that a valid Dispute Notice is sent (the “Informal Negotiation Period”). During the Informal Negotiation Period, the parties are required to conduct an individual meet-and-confer in person, or via teleconference or videoconference, that addresses only the Dispute between you and us (the “Conference”). If you are represented by counsel, your counsel may participate in the Conference, but you will also need to participate. We will participate in the Conference through one or more representatives, which may include our counsel.
Both you and we agree that the foregoing dispute resolution procedure (the “Informal Dispute Resolution Procedure”) is a condition precedent that must be satisfied before initiating any arbitration or litigation against the other party. If any aspect or requirement of the Informal Dispute Resolution Procedure has not been completed or satisfied, the parties agree that (i) a court of competent jurisdiction may enjoin the filing or prosecution of any arbitration or litigation and (ii) unless prohibited by law, no arbitration administrator shall accept or administer any arbitration or demand fees in connection with the Dispute.
B. Individual Arbitration
IF ANY DISPUTE CANNOT BE RESOLVED BY THE INFORMAL DISPUTE RESOLUTION PROCEDURE, YOU AND JRW MEDIA AGREE THAT THE DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT NEITHER PARTY WILL HAVE, AND EACH PARTY HEREBY WAIVES, THE RIGHT TO HAVE A JUDGE OR JURY TO DECIDE ITS CLAIMS, AND THAT NEITHER YOU NOR JRW MEDIA IS PERMITTED TO PROCEED IN A CLASS, CONSOLIDATED, COLLECTIVE, OR REPRESENTATIVE CAPACITY. OTHER RIGHTS THAT YOU AND WE WOULD OTHERWISE HAVE IN COURT WILL NOT BE AVAILABLE OR WILL BE MORE LIMITED IN ARBITRATION, INCLUDING DISCOVERY AND APPEAL RIGHTS.
All such Disputes shall be exclusively submitted to Judicial Arbitration and Mediation Services (JAMS) (www.jamsadr.com) for binding arbitration under its rules then in effect (as modified by these Terms), before one arbitrator to be mutually agreed upon by the parties (a Dispute submitted to JAMS for arbitration being a “Demand for Arbitration”). The arbitration shall be conducted in accordance with the JAMS Consumer Arbitration Minimum Standards (the “Minimum Standards”) if (and only if) it is determined by JAMS or the arbitrator that the Minimum Standards are applicable to the Dispute. The Minimum Standards are available at www.jamsadr.com/consumer-minimum-standards. The location of any hearings will be determined by the applicable JAMS rules, provided that if the claim is for $5,000 or less, you may choose to (a) have the arbitration conducted solely on the basis of the documents submitted to the arbitrator or (b) hold a hearing by teleconference or videoconference.
The arbitrator, and not any court or agency, shall have exclusive authority to resolve any Dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms is void or voidable. For the avoidance of doubt, you and we agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this Section 8 or the arbitrability of any claim or counterclaim. The award rendered by the arbitrator may be confirmed and enforced in a court of competent jurisdiction.
C. Mass Arbitration
This Section 8(C) applies to Mass Arbitrations (defined below) and supersedes any provision to the contrary in these Terms.
If you or we file a Demand for Arbitration that is one of fifty (50) or more similar Demands for Arbitration filed against the other party (i.e., against you or JRW Media, as applicable) by parties represented by the same law firm or law firms acting in coordination (“Mass Arbitration”), the arbitration of the Dispute, and all other Disputes constituting the Mass Arbitration, shall be conducted in accordance with the JAMS Mass Arbitration Procedures and Guidelines, including the JAMS Mass Arbitration Fee Schedule (the “Mass Arbitration Procedures”). The Mass Arbitration Procedures are available at www.jamsadr.com/mass-arbitration-procedures.
You and we agree that, in the event of a Mass Arbitration, any issues arising under or relating to (a) the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms are void or voidable or (b) the jurisdiction of the arbitrator, including any objections with respect to the existence, scope, or validity of this Section 8 or the arbitrability of any claim or counterclaim, shall be decided by a court of competent jurisdiction.
D. Exceptions
In lieu of the dispute resolution procedures in Section 8(A)-(C), you or we may (a) bring an individual claim or elect to resolve a Dispute in small claims court in the United States consistent with any applicable jurisdictional and monetary limits that may apply (so long as the claim is litigated exclusively in small claims court and not removed or appealed to a court of general jurisdiction) and (b) file an individual claim in court to (i) enjoin the infringement or other misuse of its intellectual property rights or (ii) seek a declaration that the other party is in breach of these Terms. You and we agree that any claims referenced in the preceding sentence must be brought and maintained on an individual basis.
In addition, nothing in these Terms prohibits you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).
E. Governing Law
These Terms and your use of the Service will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions or those of any other jurisdiction. Any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. THEREFORE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, JRW MEDIA OUR SUBSIDIARIES AND AFFILIATES, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, ATTORNEYS, VENDORS, LICENSORS, LICENSEES, CONTRACTORS, CUSTOMERS, SUCCESSORS, AND ASSIGNS (EACH, A “JRW MEDIA PARTY” AND, COLLECTIVELY, “JRW MEDIA PARTIES”) HEREBY DISCLAIM AND MAKE NO REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR PROMISES, EXPRESS OR IMPLIED, AS TO:
(A) THE SERVICE, INCLUDING ALL CONTENT AND USER-GENERATED CONTENT;
(B) THE FUNCTIONS, FEATURES, OR ANY OTHER ELEMENTS ON, OR MADE ACCESSIBLE THROUGH, THE SERVICE;
(C) ANY PRODUCTS, SERVICES, OR INSTRUCTIONS OFFERED OR REFERENCED AT OR LINKED THROUGH THE SERVICE;
(D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF YOUR USER-GENERATED CONTENT VIA THE SERVICE;
(E) WHETHER THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS (INCLUDING VIRUSES, TROJAN HORSES, AND OTHER TECHNOLOGIES THAT COULD ADVERSELY IMPACT YOUR DEVICE);
(F) WHETHER THE INFORMATION ON THE SERVICE IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, OR RELIABLE;
(G) WHETHER ANY DEFECTS TO OR ERRORS ON THE SERVICE WILL BE REPAIRED OR CORRECTED;
(H) WHETHER YOUR ACCESS TO THE SERVICE WILL BE UNINTERRUPTED;
(I) WHETHER THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; AND
(J) WHETHER YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION.
EXCEPT FOR ANY SPECIFIC WARRANTIES EXPRESSLY PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A JRW MEDIA PARTY, AND WITHOUT LIMITING THE PRECEDING PARAGRAPH, THE JRW MEDIA PARTIES HEREBY FURTHER DISCLAIM ANY AND ALL WARRANTIES IN RELATION TO THE SERVICE, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO SOME THE ABOVE DISCLAIMERS MAY NOT APPLY TO THE EXTENT SUCH JURISDICTIONS’ LAWS ARE APPLICABLE.
10. LIMITATIONS OF OUR LIABILITY
THE JRW MEDIA PARTIES SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY OF THE FOLLOWING DAMAGES (IF ANY) ARISING IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE SERVICE:
(A) INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES;
(B) LOSS OF USE, DATA, BUSINESS, REVENUE, OR PROFITS, IN ALL CASES WHETHER DIRECT OR INDIRECT;
(C) DAMAGES, INCLUDING FOR ANY DELAY OR FAILURE IN PERFORMANCE, ARISING FROM CAUSES BEYOND THE REASONABLE CONTROL OF THE JRW MEDIA PARTIES;
(D) DAMAGES ARISING FROM THE CONDUCT OF OTHER USERS OF THE SERVICE OR THEIR USER-GENERATED CONTENT; AND
(E) DAMAGES RELATING TO THE DELAY, FAILURE, INTERRUPTION, DISCLOSURE, OR CORRUPTION OF ANY DATA OR INFORMATION TRANSMITTED IN CONNECTION WITH THE SERVICE.
EXCEPT AS EXPRESSLY PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE JRW PARTIES’ TOTAL LIABILITY TO YOU IN CONNECTION WITH ANY DISPUTE EXCEED THE GREATER OF (A) $250 USD OR (B) THE AMOUNT YOU HAVE PAID US (IF ANY) IN CONNECTION WITH YOUR USE OF THE SERVICE IN THE 12-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM UNDERLYING THE DISPUTE AROSE (OR, IF THERE ARE MULTIPLE CLAIMS, THE DATE ON WHICH FIRST SUCH CLAIM AROSE).
THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 SHALL APPLY EVEN IF THE JRW PARTIES WERE ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, REGARDLESS OF THE LEGAL THEORY OF YOUR CLAIM(S), AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU IN RELEVANT PART.
11. Indemnification
You agree to defend, indemnify, and hold the JRW Media Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any JRW Media Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with the following: (i) your User-Generated Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) the JRW Media Parties’ exercise of any rights granted by you under the User-Generated Content.
You will cooperate as fully required by the JRW Media Parties in the defense of any matter subject to indemnification by you. The JRW Media Parties reserve the right to assume the exclusive defense and control of any such matters. You will not settle any matter for which your indemnification is required without, in each instance, the prior written consent of the applicable JRW Media Party.
Separately, if you initiate (or threaten to initiate) any litigation, arbitration, or otherwise assert any claim against any JRW Parties that is based or relies, in whole or in part, on (i) your use of the Service for Litigation Purposes or (ii) any other repudiation or breach of promises, representations, warranties, agreements, or consents that you have made or provided pursuant to these Terms (collectively “Prohibited Legal Actions”), you agree to indemnify the JRW Media Parties from and against any claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or relate to the Prohibited Legal Action (or your threat of the same), regardless of legal theory and whether the action is brought or asserted individually or as part of a collective or class proceeding.
12. Updates to Terms
As our service evolves, the terms and conditions under which we offer the Service may also need to be modified. As such, we reserve the right to modify these Terms at any time. When we do so, we will update the “Effective Date” at the top of this webpage. For material changes, we will seek to supplement such notice by email, a pop-up message or posting on the Service, or by other reasonable means. Your use of the Service after any such changes represents your agreement to these Terms as modified. Unless we state otherwise, all changes to these Terms shall have prospective effect only.
In the event that any notice to you of updates to these Terms is determined by a court or arbitrator of competent jurisdiction to be insufficient, the prior version of these Terms shall continue until sufficient notice to establish a new agreement occurs.
13. Choice of Forum
Except for claims properly lodged in a small claims court in the United States, any Disputes not subject to arbitration pursuant Section 8, including those referenced in Section 8(D), shall be resolved by a court located in New York, and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such Dispute.
14. General Provisions
A. Our Consent or Approval
As to any provision in these Terms that grants us a right of consent or approval, or permits us to exercise a right, in our “sole discretion,” we may exercise that right in our sole and absolute discretion. We will not be deemed to have granted our consent or approval in any respect without it being in writing and signed by one of our officers.
B. Operation of Service; International Issues
We control and operate the Service from our offices in the United States, and we make no representation that the Service is appropriate or available for use in any other jurisdiction. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with all applicable laws, including U.S. and international export control laws and regulations.
The Service may include or reference products and services that are available only in the United States (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion. You and we disclaim any application to these Terms of the Convention on Contracts for the International Sale of Goods.
C. Severability; Interpretation
If any provision of these Terms is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms (which will remain in full force and effect).
To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms, the word will be deemed to mean “including, without limitation.” The summaries of provisions and section headings are provided for convenience only and shall not impact the interpretation of these Terms.
D. Communications; Admissibility
You consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive from you. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
You agree that a printed version of these Terms and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms or your use of the Service to the same extent and subject to the same conditions as other business documents and records generated and maintained in printed form.
E. Investigations; Cooperation with Law Enforcement
We reserve the right, without any limitation, to: (i) investigate any suspected breaches of our Service security or our information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms, (iii) investigate any information obtained by us in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, and (v) prosecute violators of these Terms.
F. Termination; Survival
These Terms will continue to apply until terminated by either you or us. We may terminate these Terms, or suspend or terminate your access to the Service, at any time if (a) we believe you have breached any of these Terms, (b) we stop providing the Service or any material component thereof, or (c) as we believe necessary to comply with applicable law.
You may terminate these Terms at any time by emailing us at legalnotices@jwestphal.com and stating that you wish to terminate this agreement.
If you or we terminate these Terms, or if we suspend or terminate your access to the Service, you agree that (a) your right to access and use the Service ceases immediately, (b) we shall have no liability to you in connection with such suspension or termination, and (c) except as expressly provided otherwise by us, we will not refund any amounts that you have already paid to us.
The following provisions shall survive the termination of these Terms: the Introduction to these Terms and Sections 1 (excluding the Service License), 2, 5, 6, 7, 8, 9, 10, 11, 13, and 14, along with any terms that, by their nature, should survive termination.
G. Assignment
We may assign our rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of JRW Media.
H. No Waiver
Except as expressly set forth in these Terms, (i) no failure or delay by you or us in exercising any rights, powers, or remedies available hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
I. Connectivity
You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your use of the Service, and you are responsible for all charges related to them.