Last Updated: September 8, 2020
PLEASE READ THESE TERMS CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN SECTION 9, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 9.
We may make changes to these Terms from time to time. If we make changes, we will update the date at the top of these Terms or provide notice through our Site. Unless stated otherwise, the amended Terms will be effective immediately, and your continued use of the Site will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using the Site.
You must be at least 18 years of age to use the Site. If you use our Site on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
3. Third-Party Services
We may provide information about third-party services through the Site, and we may allow third parties to make their content and information available on or through the Site (collectively, “Third-Party Services”). Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Services are solely between you and the third party. Emes Project does not control or endorse, and makes no representations or warranties regarding, any Third-Party Services, and your access to and use of such Third-Party Services is at your own risk.
4. Prohibited Conduct and Content
You are solely responsible for your conduct while using the Site. While using the Site, you agree to not violate any applicable law, contract, intellectual property right or other third-party right, or commit a tort. In addition, you will not:
Enforcement of this Section 4 is solely at Emes Project’s discretion, and failure to enforce this Section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Site will not contain any content that is prohibited by such rules.
5. Ownership; Limited License
The Site, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, is owned by Emes Project or its licensors and is protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Site are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Site for your own personal, noncommercial use. Any use of the Site other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
Our logos are trademarks of Emes Project and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Site are the property of their respective owners. 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 by us.
The Site and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Emes Project does not represent or warrant that the Site is accurate, complete, reliable, current or error-free. While Emes Project attempts to make your use of the Site and any content therein safe, we cannot and do not represent or warrant that the Site or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Site.
8. Indemnification and Limitation of Liability
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Emes Project and its agents, partners, affiliates, and employees (individually and collectively, the “Emes Project Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Site; (b) your violation of these Terms; (c) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (d) your conduct in connection with the Site. You agree to promptly notify the Emes Project Parties of any third-party Claims, cooperate with the Emes Project Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Emes Project Parties will have control of the defense or settlement, at Emes Project’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Emes Project or the other Emes Project Parties.
To the fullest extent permitted by applicable law, the Emes Project Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if the Emes Project Parties have been advised of the possibility of such damages.
The total liability of the Emes Project Parties to you for any claim arising out of or relating to these Terms or the Site, regardless of the form of the action, is limited to $100.00.
The limitations set forth in this Section 8 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Emes Project or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
9. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Emes Project and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and Emes Project agree that any dispute arising out of or related to these Terms or the Site is personal to you and Emes Project and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or Emes Project seeks to bring an individual action in small claims court located in the county of your billing address or disputes in which you or Emes Project seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Emes Project waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or the Site resolved in court. Instead, for any dispute or claim that you have against Emes Project or relating in any way to the Site, you agree to first contact Emes Project and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Emes Project by email at firstname.lastname@example.org or by certified mail addressed to c/o Emes Project LLC 1329 N 47th St, PO Box #31135, Seattle, WA 98103. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Emes Project cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in King County, Washington in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and Emes Project agree that these Terms affect interstate commerce and that the enforceability of this Section 9 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only 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.
The arbitrator, Emes Project, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and Emes Project agree that for any arbitration you initiate, you will pay the filing fee and Emes Project will pay the remaining JAMS fees and costs. For any arbitration initiated by Emes Project, Emes Project will pay all JAMS fees and costs. You and Emes Project agree that the state or federal courts of the State of Washington and the United States sitting in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or the Site must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and Emes Project will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 9 by sending an email with your request to email@example.com. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 10.
If any portion of this Section 9 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 9 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 9; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 9 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 9 will be enforceable.
10. Governing Law and Venue
Any dispute arising from these Terms and your use of the Site will be governed by and construed and enforced in accordance with the laws of Washington, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether 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 will be resolved in the state or federal courts of Washington and the United States, respectively, sitting in King County, Washington.
11. Modifying and Terminating the Site
We reserve the right to modify the Site or to suspend or stop providing all or portions of the Site at any time. You also have the right to stop using the Site at any time. We are not responsible for any loss or harm related to your inability to access or use the Site.
If any provision or part of a provision of these Terms is determined to be unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of Emes Project to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically.