Updated: January 20, 2016
These Site Terms ("Terms") govern your access to, and use of, the websites (collectively, the "Sites") that are owned or operated by Essential Platform Services, Inc. ("Essential," "we" or "us"), a company headquartered at 999 3rd Avenue, Suite 3400, Seattle, WA 98104. These Terms do not alter in any way the terms or conditions of any other agreement you may have with Essential for products, services or otherwise. If you are using the Sites on behalf of an entity, you represent and warrant that you are authorized to accept these Terms on such entity's behalf, and that such entity agrees to be responsible to Essential if you violate these Terms.
Essential reserves the right to change or modify these Terms at any time and in our sole discretion. If Essential makes any changes to these Terms, we will provide notice of such changes, such as by updating the "Last Updated" date at the top of these Terms. Your continued use of the Sites will confirm your acceptance of the revised Terms. We encourage you to frequently review our Terms to ensure that you understand the terms and conditions that apply to your access to and use of the Sites. If you do not agree to any amended Terms, you must immediately stop using the Sites.
Enforcement of these Terms is solely in Essential’s discretion, and the absence of enforcement of these Terms in some instances does not constitute a waiver of Essential’s right to enforce these Terms in other instances. Any use of the Sites in violation of these Terms may result in, among other things, termination or suspension of your right to use the Sites.
The Sites are not targeted towards, nor intended for use by, anyone under the age of 18. By accessing or using the Sites, you represent and warrant that you (a) are 18 years of age or older; (b) have not been previously suspended or terminated from the Sites; and (c) have full power and authority to enter into these Terms and that, in doing so, you will not violate any other agreements to which you are a party. If you are accessing or suing the Sites on behalf of an organization, you are agreeing to these terms for that organization and promising Essential that you have the authority to bind that organization to these Terms.
3. Copyright and Limited License
Unless otherwise indicated on the Sites or by Essential, the Sites and all content and other materials therein, including, without limitation, the Essential logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Site Materials") are the proprietary property of Essential or our licensors or users and are protected by U.S. and international copyright laws.
Essential grants you a limited, non-transferable, non-exclusive, non-sublicensable license to access and use the Sites and Site Materials; however, such license is subject to these Terms and, except as permitted under applicable law, does not include (a) any resale or commercial use of the Sites or Site Materials; (b) distributing, publicly performing or public displaying any Site Materials; (c) modifying or otherwise making any derivative uses of the Sites or Site Materials, or any portion thereof; (d) using any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Sites, Site Materials or any information contained therein, except as expressly permitted on the Sites; and (f) using the Sites or Site Materials other than for their intended purposes. Any use of the Sites or Site Materials other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use also may violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein or otherwise by Essential, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Site Materials may include software components provided by Essential or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
"Essential" and the Essential logo and any other Essential product or service names, logos or slogans that may appear on the Sites are trademarks of Essential or its licensors in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Essential or the applicable trademark holder. You may not use any metatags or other "hidden text" utilizing "Essential" or any other name, trademark, or product or service name of Essential without our prior written permission. In addition, the look and feel of the Sites, including all page headers, custom graphics, button icons and scripts, are the service mark, trademark and/or trade dress of Essential and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product or service names, logos or slogans mentioned on the Sites are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Essential.
5. Third-Party Content
Essential may provide third-party content on the Sites and may provide links to web pages and content of third parties (collectively, "Third-Party Content") as a service to those interested in this information. Essential does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that, to the maximum extent permitted by applicable law, Essential is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content.
6. Acceptable Use of the Sites
You agree that your access to and use of the Sites will not violate any law, contract, intellectual property or other third-party rights or constitute a tort, and that you are solely responsible for your conduct while on the Sites. You further agree that you will abide by these Terms and will not:
You may submit questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information or materials about Essential and the Sites (collectively, "Feedback"). Feedback, whether submitted through the Sites or otherwise, is non-confidential and shall become the sole property of Essential. Essential shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You agree to defend, indemnify and hold harmless Essential and our partners, independent contractors, service providers and consultants and our respective directors, officers, employees and agents (individually and collectively, the "Essential Parties"), from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to: (a) your use of the Sites; (b) any Feedback you provide; (c) your violation of these Terms; and (d) your violation of the rights of another.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES AND SITE MATERIALS ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY ESSENTIAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ESSENTIAL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES AND SITE MATERIALS. ESSENTIAL DOES NOT REPRESENT OR WARRANT THAT THE SITES OR SITE MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
WHILE ESSENTIAL ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SITES SAFE, ESSENTIAL CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITES OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Essential.
Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ESSENTIAL OR THE ESSENTIAL PARTIES, BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SITES OR SITE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ESSENTIAL, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ESSENTIAL’S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ESSENTIAL, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITES EXCEED ONE HUNDRED U.S. DOLLARS ($100). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS EXCLUDES OR LIMITS OUR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR FOR FRAUD.
11. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ESSENTIAL AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
11.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, "Disputes") arising out of or related to a violation of Section 8 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Essential agree (a) to waive your and Essential’s respective rights to have any and all Disputes arising from or related to these Terms or the Sites resolved in a court, and (b) to waive your and Essential’s respective rights to a jury trial. Instead, you and Essential agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
11.2. No Class Arbitrations, Class Actions or Representative Actions
You and Essential agree that any Dispute arising out of or related to these Terms or the Sites is personal to you and Essential and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Essential agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Essential agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
11.3. Federal Arbitration Act
You and Essential agree that these Terms affect interstate commerce and that the enforceability of this Section 13 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA"), to the maximum extent permitted by applicable law.
11.4. Notice; Informal Dispute Resolution
You and Essential agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Essential shall be sent by e-mail to Essential, Attn: Brian Fioca, email@example.com. Your notice must include (a) your name, postal address, email address and telephone.legal-headingber, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. If you and Essential cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Essential may, as appropriate and in accordance with this Section 13, commence an arbitration proceeding or, to the extent specifically provided for in Section 13.1, file a claim in court.
You and Essential agree that (a) any arbitration will occur in King County, Washington, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services ("JAMS"), which are hereby incorporated by reference, and (c) that the state and federal courts located in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county where you reside if the Dispute meets the requirements to be heard in small claims court.
11.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
11.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 13 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 13 will remain valid and enforceable. Further, the waivers set forth in Section 13.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
12. Governing Law and Venue
These Terms and your access to and use of the Sites shall be governed by and construed and enforced in accordance with the laws of the State of Washington, without regard to conflict of law rules or principles (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts located in King County, Washington.
13. Modifications to the Sites
Essential reserves the right to modify or discontinue, temporarily or permanently, the Sites or any content, features or portions thereof at any time without prior notice and without obligation or liability to you. You agree that Essential will not be liable for any modification, suspension or discontinuance of the Sites or any part thereof.
Notwithstanding any of these Terms, Essential reserves the right, without notice and in our sole discretion, to terminate your right to use the Sites, or any portion of thereof, and to block or prevent your future access to and use of the Sites or any portion thereof.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.