Terms and Conditions
Effective Date: December, 2016
Last Updated Date: February 5, 2018
Hello, and welcome to smallcellsite.com! SmallCellSite.com LLC ("SCS") is excited to have You access the Website (as defined below) and use the Services (as defined below). Through the Website (as defined below), SCS allows individuals managing and/or owning certain property sites, locations and assets ("Assets") provided that You have the full legal authority to enter into and execute leases for such Assets (individually an "Owner" and collectively the "Owners"), to list their Assets on the Website for free, in exchange for: (a) giving SCS an option to lease such Assets ("Lease Agreement"); and/or (b) allowing SCS tosublease or sublicense ("Operator Agreement") these Assets to providers, carriers, and operators of telecommunications, WiFi, ISP, and IoT services (individually an "Operator" and collectively "Operators") through the Website. (Operators and Owners may collectively be referred to herein as a "You" or as "User" or "Users".) Operators are able to view a comprehensive database of all Assets listed on the Website (the "Database") to map out areas where Operators may want to lease and/or sublease/sublicense certain Assets in order to attach antennas, telecommunications, Wi-Fi, ISP, and IoT equipment and the like. Owners who list their Assets on the Website agree that while an Asset is listed on the Website and thus included in the Database made available to Operators, SCS shall have the right to lease that Asset for a minimum of at least ten (10) years or as otherwise set forth in the applicable Lease Agreement at the Use Fee (as defined below) requested, or upon seeking Owner"s permission if a lower Use Fee is requested or negotiated, as further set forth in Section 3 below. Owners who list their Assets on the Website: (a) further agree to execute (i) a Master Asset Marketing and Agency Agreement ("Marketing Agreement") and (ii) the Lease Agreement, if requested or required, for the installation and operation of facilities related to telecommunications, Wi-Fi, ISP, and IoT services on their Assets and (b) hereby authorize SCS to enter into Operator Agreements for such Assets.
THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIAL, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
In addition to access to the Website and Database, You will also have access to the offered "Options and Resources", including, but not limited to: (i) the right to use the Website in order to list Your Assets for Lease on the Database; (ii) SCS's marketing of Your Assets to Operators; (iii) the ability for You (as an Operator) to use the Website and the Database to identify and create projects to attach to Owners" Assets; (iv) Your ability (as an Owner) to enter into a Lease Agreement with SCS; and (v) Your ability (as an Operator) to enter into an Operator Agreement with SCS in order to install Your equipment on the Asset.
1. Use of the Services and Website.
You understand that the Services are evolving. As a result, SCS may require You to accept updates to the Services that You have installed on Your computer and/or mobile device. You acknowledge and agree that SCS may update the Services with or without notifying You. You may need to update third-party software from time to time in order to use the Website or the Database (e.g., Your browser).
1.2 Certain Restrictions.
2.1 Registering Your Account.
2.2 Registration Data.
In registering for the Services, You agree to (a) provide true, accurate, current and complete information about Yourself and Your listed Assets, as applicable, as prompted by the Website registration form (the "Registration Data"); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that You are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services 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. You may not share Your Account or password with anyone, and You agree to (1) notify SCS immediately of any unauthorized use of Your password or any other breach of security; and (2) exit from Your Account at the end of each session. If You provide any information that is untrue, inaccurate, not current or incomplete, or SCS has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, SCS maintains the right to suspend or terminate Your Account and refuse any and all current or future use of the Services (or any portion thereof), including Your ability to list or view Assets on the Database, as applicable. You agree not to create an Account using a false identity or information, or on behalf of someone other than Yourself (unless You have valid written authorization from that person or entity). You agree that You shall not have more than one Account at any given time. SCS, in its sole discretion, reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party"s rights. You agree not to create an Account or use the Services if You have been previously removed by SCS, or if Youhave been previously banned from any of the Services offered by SCS.
2.3 Your Account.
Notwithstanding anything to the contrary herein, You acknowledge and agree that You shall have no ownership or other property interest in Your Account, and You further acknowledge and agree that all rights in and to Your Account are and shall forever be owned by and inure to the exclusive benefit of SCS, and its successors and assigns.
3. Listing on and Accessing the Database; Responsibility for Content Submitted.
3.1 Listing on the Database.
You (as an Owner) may use the Services to list the Assets that You own and/or manage on the Database made available through the Website. The listing may include but not be limited to the latitude and longitude of the Asset, photos of the Asset, the requested fee to lease/license of the Asset ("Use Fee"), the proposed minimum term of the Lease Agreement, and other unique features about the Asset and the Lease Agreement that could be appealing to Operators (e.g., access to power). You (as an Owner) may remove the Assets that You Make Available (as defined below) on the Database at any time so long as the removal occurs before a Lease Agreement is executed with SCS. You (as an Owner) hereby grant SCS the option to lease such Asset at the Use Fee set forth in the Database listing.
3.2 Responsibility for Content on Database.
You acknowledge that all content is the sole responsibility of the party from whomsuch content originated. This means that You, and not SCS, are entirely responsible for the content that You upload, post, e-mail, transmit, or otherwise make available ("Make Available" or "Made Available") through the Services, including but not limited to the Asset listings included within the Database ("Your Content").
3.3 No Obligation to Pre-Screen Content.
In consideration of the benefits arising under these Services provided herein, You (as an Owner) agree that, during the period that Your Asset is listed on the Database and for twelve (12) months after the listing for such Asset is removed or deleted from the Database, or while still listed, You shall not, during such periods, circumvent SCS or its rights to lease and/or sublease the listed Assets in any manner, including but not limited to, leasing, subleasing, licensing, or granting any interest in any portion of any listed or previously listed Assets to a third-party (including but not limited to an Operator) for uses related to cellular wireless services, telecommunication operators, mobile carriers, or internet Operators. In the event You (as an Owner) violate this provision, any income or other consideration received by You under any lease, "sublease, or other arrangement entered into in contravention of this Section shall be payable to SCS and SCS shall be entitled to reimbursement of its attorneys" fees and expenses incurred in connectionwith the enforcement of this provision.
4. Option Exercise and Lease.
4.1 Option Exercise.
Once the Asset is listed on and Made Available within the Database, if You (as an Operator) are interested in any such Asset then You will initiate the process for SCS to lease the Asset and SCS will notify the Owner that SCS is exercising its option to lease the listed Asset. If the option notice transmitted by SCS is for the Use Fee listed on the Database, no additional consent from You (as the Owner) shall be necessary and You agree to execute the Marketing Agreement and accompanying Lease Agreement within five (5) business days of transmission of the documents from SCS. If the option notice transmitted by SCS for the listed Asset is for an amount less than the Use Fee listed on the Database, SCS will seek Your (Owner"s) consent for such negotiated Use Fee, prior to transmitting the Marketing Agreement and accompanying Lease Agreement for Your execution. You (as an Owner) shall not be required to accept an amount less than the Use Fee listed on the Database. Notwithstanding anything to the contrary herein, You (as an Owner) may reject SCS's option to lease an Asset in the event You determines you are unable to move forward with the leasing of the Asset due to circumstances beyond Your control. You (as an Owner) shall promptly notify SCS in writing of such circumstances upon their discovery.
4.2 Operator Terms.
Upon receipt of Your executed Lease Agreement, SCS shall then endeavor to execute an Operator Agreement with the interested Operator. If You are an Owner, You understand and acknowledge that You may be required to agree and comply with additional terms required by the Operator (the "Operator Terms"). By executing a Lease Agreement, You agree to be bound by all Operator Terms specific to any Operator who may choose to enter into an Operator Agreement for Your Assets. The Operator Terms (if any) shall be provided as an addendum to the executed Lease Agreement
In the event that a dispute occurs relating to the execution of any Lease Agreement or Operator Agreement between an Owner and an Operator, You agree to promptly complete the dispute form provided by SCS. You agree that SCS shall review any dispute forms submitted pursuant to this Section 4.3 and in its sole discretion make any decisions regarding the outcome of such dispute.
5.1 The Services.
Except with respect to Your Content, You agree that SCS and/or its suppliers own all rights, title and interest in and to the Services (including but not limited to, any titles, computer code, themes, objects, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, profile information, 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 Services.
SCS and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of SCS and may not be used without advance written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
5.3 Other Content.
Except with respect to Your Content, You agree that You have no right or title in or to any content that appears on or in the Website and/or the Database.
5.4 Your Content.
SCS does not claim ownership of Your Content. However, when You as a Registered User post or publish Your Content on or in the Website and/or the Database, You represent and warrant that You own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights), and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
5.5 License to Your Content.
Subject to any applicable account settings that You select, You grant SCS a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, adapt, perform, display, modify, and reformat Your Content (in whole or in part) for the purposes of operating and providing the Services to You and to SCS's other Users. Please remember that other Users may search for, see, use, modify, and reproduce any of Your Content that You submit to any "public" area of the Website and/or the Database. You agree that You, not SCS, are responsible for all of Your Content that You Make Available on or in the Services.
Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on or through the Website and/or the Database, You hereby expressly permit SCS to identify You by Your username (which may be a pseudonym, or Your email address without the domain listed) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
You agree that submission of any ideas, suggestions, documents, and/or proposals to SCS through its suggestion, feedback, wiki, forum, or similar pages ("Feedback") is at Your own risk and that SCS has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that You possess any and all rights necessary to submit the Feedback. You hereby grant to SCS a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, license, 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 the Services.
6. User Conduct.
You agree that You will not, under any circumstances:
(a) Use automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with any of the Services;
(b) Interfere with or damage the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(c) Modify or cause to be modified any files that are a part of the Services;
(d) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon the Services, or other attempts to disrupt the Services or any other person"s use or enjoyment of the Services ;
(e) Attempt to gain unauthorized access to the Services, accounts registered to others, or to the computers, servers, or networks connected to the Services by any means other than the User interface provided by SCS, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Services; or
(f) Attempt to probe, scan, or test the vulnerability of any SCS system or network, or breach any security or authentication measures.
6.2 Unauthorized Use or Access.
You agree that You will not, under any circumstances:
(b) Systematically retrieve data or other content from the Services "to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;
(c) Use, display, mirror, or frame the Services , or any individual element within the Services, SCS's name, any SCS trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without SCS's express written consent;
(d) Use any unauthorized software that accesses, intercepts, "mines", or otherwise collects information from or through the Services or that is in transit from or to the Services, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Services;
(e)Make any automated use of the Services, or take any action that imposes or may impose (in SCS's sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Services;
(f) Bypass any robot exclusion headers or other measures SCS takes to restrict access to the Services, or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Services, or harvest or manipulate data;
(g) Use, facilitate, create, or maintain any unauthorized connection to the Services , including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Services; or (ii) any connection using programs, tools or software not expressly approved by SCS;
(h) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services; or
(i) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as "spyware," "passive collection mechanisms" or "pcms").
In connection with Your use of the Services, You shall not:
(a) Make Available any content that (i) is unlawful, tortious, defamatory, vulgar, knowingly false, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
(b) Impersonate any person or entity, including, but not limited to, SCS personnel, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
(c) Make Available any content that You do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(d) Make Available any content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; or
(e) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court.
8. Interactions with Other Users.
The Website and Database will contain content provided by other Users. SCS is not responsible for and does not control such content. SCS has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to the content posted by other Users and/or Registered Users. You use all content and interact with other Users and/or Registered Users at Your own risk.
9. Third-Party Services; Advertising Revenue.
9.1 Third-Party Services.
9.2 Advertising Revenue.
SCS reserves the right to display Third-Party Ads before, after, or in conjunction with content posted on the Website and the Database, and You acknowledge and agree that SCS has no obligation to You in connection therewith (including, without limitation, any obligation to share revenue received by SCS as a result of such advertising).
10. Fees and Taxes.
10.1 General Purpose of Terms: Sale of Service.
10.2 Use Fee.
If You are an Owner, You agree and acknowledge that SCS will list the Asset that You Make Available on the Database and will receive thirty percent (30%) of any Use Fee for that Asset." In the event that You enter into a Lease Agreement, any terms relating to the Use Fee shall be governed exclusively by the terms of the Marketing Agreement and Lease Agreement and shall supersede this Section 10.2. SCS will collect the Use Fee upon remittance of payment by the Operator, and subsequently remit the remainder of the Use Fee collected to You (as the Owner) as the fees payable under the Lease Agreement. If You are an Operator, You agree and acknowledge that the Use Fee as set forth in the Database includes the portion of the fees payable to SCS and You agree to pay the full amount due upon execution of the Operator Agreement, unless otherwise expressly provided otherwise in the Operator Agreement between You and SCS.
You agree to pay all fees due or charges to Your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable, as specified in a Lease Agreement or Operator Agreement. SCS reserves the right at any time to change its prices and billing methods, either at the time of posting on the Website, the Database, or by e-mail sent to You.
10.5 Withholding or Other Local Taxes.
You agree to make all payments of fees to SCS free and clear of, and without reduction for, any withholding or local taxes. Any such taxes imposed on payments of fees to SCS will be Your sole responsibility, and You will provide SCS with official receipts issued by the appropriate taxing authority, or such other evidence as SCS may reasonably request, to establish that such taxes have been paid.
12. Disclaimer of Warranties and Conditions; Owner Warranty.
12.1 As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK, AND "THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS ONLY, WITH ALL FAULTS. THE SCS 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.
(a) THE SCS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED OR (5) THAT THE ASSET INFORMATION PROVIDED IS ACCURATE OR THAT THE LEASE AGREEMENT, OPERATOR AGREEMENT, AND/OR RECORDED MEMORANDUM OF LEASE, SUBLEASE, LICENSE, OR SUBLICENSE FOR SUCH ASSET IS BINDING AND ENFORCEABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR ASSET OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. SUBJECT TO ANY LIMITATIONS LISTED IN THE LEASE AGREEMENT OR THE OPERATOR AGREEMENT, YOU AGREE TO PERFORM ANY AND ALL NECESSARY DILIGENCE RELATED TO THE ASSET TO ENSURE THAT THE ASSET WILL MEET YOUR REQUIREMENTS. YOU FURTHER AGREE THAT THE LEASE AGREEMENT AND OPERATOR AGREEMENT IS BINDING AND ENFORCEABLE IN THE LOCATION OF THE ASSET. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGES OR ANY LOSS THAT RESULTS FROM THE LEASING OR SUBLEASING OF THE ASSET OR THE USE OF THE CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. SCS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION, AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SCS OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, SCS MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT SCS's SOLE DISCRETION. THE PROVISIONS OF THIS SECTION 12 APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
12.2 No Liability for Conduct of Third-Parties.
YOU ACKNOWLEDGE AND AGREE THAT THE SCS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE SCS PARTIES LIABLE, FOR THE CONDUCT OF ANY THIRD-PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY OR DAMAGE FROM SUCH THIRD-PARTIES RESTS ENTIRELY WITH YOU. 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."
12.3 No Liability for Conduct of Other Users.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT SCS DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS AND/OR REGISTERED USERS OF THE SERVICES. FURTHER YOU UNDERSTAND AND ACKNOWLEDGE THAT SCS HAS NO RESPONSIBILITY OR CONTROL OVER THE ACCURACY OR QUALITY OF ANY LISTED ASSETS, VALIDITY OF LEASE AGREEMENTS OR OPERATOR AGREEMENTS EXECUTED THROUGH THE USE OF THE SERVICES, ANY INTERACTIONS BETWEEN OWNERS AND OPERATORS OR ANY PERSONAL INJURY (INCLUDING DEATH) OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY RELATED TO ANY LISTED ASSET.
12.4 Owner Warranty.
13. Limitation of Liability.
13.1 Disclaimer of Certain Damages.
13.2 Cap on Liability.
UNDER NO CIRCUMSTANCES WILL THE SCS PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY SCS AS A RESULT OF YOUR USE OF THE SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING ANY SUCH CLAIM. IF YOU HAVE NOT PAID SCS ANY MONIES, SCS's SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50). IF REQUIRED BY APPLICABLE LAW, THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF SCS FOR (A) DEATH OR PERSONAL INJURY CAUSED BY SCS's GROSS NEGLIGENCE, OR FOR (B) ANY INJURY CAUSED BY SCS's FRAUD OR FRAUDULENT MISREPRESENTATION.
13.3 User Content.
THE SCS PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
13.4 Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SCS AND YOU.
14. Procedure for Making Claims of Copyright Infringement.
It is SCS's policy to terminate membership privileges of any User who infringes on any copyright after notification to SCS by the copyright owner or the copyright owner"s legal agent. Without limiting the foregoing, if a copyright owner believes that its work has been copied and posted on the Services in a way that constitutes copyright infringement, the copyright owner must provide SCS's Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that the copyright owner claims has been infringed and a copy of all government approvals of the alleged copyright; (c) a description of the location on the Services of the material that the copyright owner claims is infringing; (d) the copyright owner"s or the copyright owner"s legal agent"s address, telephone number and e-mail address; (e) an Affidavit executed by the copyright owner that the copyright owner has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law, and that the above information in the notice is accurate and that the person issuing the statement is the legal copyright owner or authorized to act on the copyright owner"s behalf. Such original, notarized Affidavit should be sent to Corporate Counsel, 43130 Amberwood Plaza, Suite 210, Chantilly, VA 20152.
(b) Delete any of Your Content provided by You or Your agent(s);
(c) Terminate Your Account(s);
(d) Discontinue Your subscription to any Services;
(e) Terminate any Lease Agreements and/or Operator Agreements entered into by You and SCS;
(e) Notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which SCS deems in its sole discretion to be appropriate.
16. Term and Termination.
16.2 Prior Use.
16.3 Termination of Services by SCS.
16.4 Termination of Services by You.
If You want to terminate the Services provided by SCS, You may do so by (a) notifying SCS at any time and (b) closing Your Account for all of the Services that You use. Your written notice should be sent in accordance with Section 18.9 hereof. Notwithstanding anything to the contrary herein, once You execute a Marketing Agreement, Lease Agreement, or Operator Agreement for a particular Asset (as the case may be), the terms of termination contained in the Marketing Agreement, Lease Agreement, or Operator Agreement (as the case may be) shall control with respect to that Asset.
16.5 Effect of Termination.
Termination of any Services includes removal of access to such Services and barring of further use of the Services. 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, 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 SCS's Website and Databases. SCS will not have any liability whatsoever to You for any suspension or termination, including for deletion of Your Content.
16.6 No Subsequent Registration.
17. International Users.
The Services 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 SCS intends to announce such Services or content in Your country. The Services are controlled and offered by SCS from its facilities in the United States of America. SCS makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
18. General Provisions.
18.1 Electronic Communications.
Except pursuant to Section 18.9 hereof, the communications between You and SCS will be through electronic means, whether You visit the Website, the Database, or send SCS e-mails, or whether SCS posts notices on the Website or the Database, or communicates with You via e-mail. You (a) consent to receive communications from SCS in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SCS 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.
18.3 Force Majeure.
SCS 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 supplies or transportation facilities, fuel, energy, labor, or materials.
18.4 Questions or Complaints.
If You have any questions or complaints with respect to the Services, please contact SCS at firstname.lastname@example.org. SCS will do its best to address Your concerns. If You feel that Your concerns have been addressed incompletely, SCS invites You to let SCS know for further investigation.
18.5 Limitations Period.
18.6 Dispute Resolution.
Please read this Section 18.6 carefully. It is part of Your contract with SCS and affects Your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(b) Notice Requirement and Informal Dispute Resolution.
Before either party may seek arbitration, the party must first send to the other party an electronic Notice of Dispute ("Notice") describing the nature and basis of the claim or dispute, and the requested relief. After the Notice is received, You and SCS may attempt to resolve the claim or dispute informally. If You and SCS do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules.
(d) Prevailing Party.
The Prevailing Party shall be entitled to reimbursement of its attorney’s fees and professional expenses. “Prevailing Party” means the Party determined by the arbitrator or the Court, as applicable, to have most nearly prevailed even if such Party did not prevail in all matters.
(e) Additional Rules for Non-Appearance Based Arbitration.
If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by SCS. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
YOU HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS OF A JUDGE OR JURY TRIAL, instead electing that all claims and disputes shall be resolved by arbitration (except as listed below). YOU AGREE THAT ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE PARTY MAY NOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PARTIES.
(g) Claims Not Subject to Arbitration.
Notwithstanding the foregoing, You agree the following claims are not subject to the arbitration requirement: (i) emergency equitable relief in order to maintain the status quo pending arbitration; and (ii) claims of defamation, violation of the computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets.
In any circumstances where an arbitrator’s decision and award must be entered into a court of competent jurisdiction, You hereby agree to submit to the personal jurisdiction of the courts located within Loudoun County, Virginia, for such purpose.
18.7 Governing Law.
18.8 Choice of Language.
18.12 Export Control.
You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which You obtained from SCS, and any other applicable laws. In particular, but without limitation, the Services 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 the Services, 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 the Services 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 SCS 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 SCS products, Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.13 Consumer Complaints.
If applicable, in accordance with California Civil Code §1789.3, You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd, Suite N-112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
18.15 Entire Agreement; Construction.