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Living Proof Terms and Conditions

Last Updated: February 9, 2017

Living Proof, Inc. (“Living Proof,” “we” or “us”) is pleased to provide you with access to our website, where you can learn about, purchase and review our products, and more.  All content, functionalities and services on the Living Proof website are referred to herein as the “Services,” and may be modified from time to time in our sole discretion. 

By using our website, you agree to be bound by these Terms and Conditions (the “Agreement,”) which we may change at any time.  All changes are effective immediately when we post them.  Your continued use of the Services constitutes your consent to such changes. PLEASE READ THIS AGREEMENT CAREFULLY AND CHECK THESE TERMS OF USE PERIODICALLY FOR CHANGES. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE SERVICES.

 

1. Conditions on Using the Services

a)    Basic Terms.  We may, in our sole discretion, refuse to offer the Services to any person or entity. We may, without notice and in our sole discretion, terminate your right to use the Services, or any portion of thereof, and block or prevent your future access to and use of the Services or any portion thereof.  We further reserve the right to withdraw or amend the website, and any service we provide on the website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the website, or the entire website, to users, including registered users.

b)    Your Account.  A Living Proof account is required in order to fully use certain aspects of the Services, including but not limited to auto-delivery, personalized recommendations, and rewards. You agree to provide only accurate and true information in connection with the creation of your account, and to update your information as necessary so it remains accurate and current. You may not transfer your account to any third party. You are responsible for keeping your account login information confidential and for any and all activities that occur under your account. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.  You agree to notify us immediately if you suspect or become aware of any unauthorized use of your account or other breach of security on the Services. 

c)     Privacy Policy.  Our Privacy Policy, which describes how we may collect and use your information, may be viewed at http://www.livingproof.com/buy/privacy-policy and is incorporated into and considered a part of this Agreement.  By using the Services, you agree that your information may be collected and used in accordance with our Privacy Policy and this Agreement.

d)    Minors.  THE SERVICES ARE NOT INTENDED FOR CHILDREN UNDER 13, and persons under the age of 13 are prohibited from registering with or using the Services. You represent and warrant that you are more than 18 years of age or, if you are above 13 and below 18 years of age, you are an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to abide by and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement.  This provision is void where prohibited by law and the right to access the Sites and Services is revoked in such jurisdictions.

e)    Purchases and Shipping

  1. When you make a purchase, we will ask you to supply certain information applicable to your purchase, including, without limitation, payment, shipping information and other information. Any such information will be treated as set forth in our Privacy Policy. All information that you provide to us or our third party payment processor must be accurate, current and complete.
  1. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. Verification of information applicable to a purchase may be required prior to our acceptance of any order. Living Proof reserves the right to change its prices at any time without prior notice to you.
  1. Returns, Refunds and Shipping.  Our policies on returns, refunds and shipping are available here: http://www.livingproof.com/buy/customer-service/.

 

2.  Contests

Any sweepstakes, contests, promotions, or games (“Contest”) offered on this website are governed by the terms and conditions (or rules) specific to that Contest. By participating in such a Contest, you will be subject to those terms and conditions. You must read the applicable terms and conditions, which will be linked from that Contest. To the extent that there is any conflict between those terms and conditions and this Agreement, the terms and conditions of that Contest will govern for purposes of that Contest. Any Contest made available or advertised on third party sites accessible from this website (such as social media platforms) shall be subject to the terms and conditions applicable to your use of the third party site and participation in such Contest.

 

3.  Ownership and Content

a)    Living Proof Content. By using the Services, you will encounter “Living Proof Content,” which includes all of the images, text, information, data, audio, video, graphics and other material included on or otherwise made available through the Services, excluding User Content.

b)    User Content.  If you use the Living Proof blog, send us an email, or use other comment or feedback features on the website to submit any text, photographs,, reviews, or other material to us, such material ("User Content") remains your property, and the Living Proof does not claim any ownership of the copyright or other proprietary rights in such User Content, except as described in this Agreement.  ** Once a user has granted their consent to our use of materials posted to the user’s social media account, such materials shall be included within the definition of User Content, and these terms and conditions shall apply. **

c)     User Suggestions.  User Content does not include suggestions or ideas that you may share with us regarding new concepts or proposed improvements for products, services, advertisements, or otherwise relating to the operation of Living Proof or its website.  Such ideas (“User Suggestions”) become the property of the company when you submit them, and you agree that you will claim no ownership or rights in them, including any rights to use the idea yourself, or rights of attribution or remuneration.  If necessary, you agree to execute appropriate forms to assign any and all rights in User Suggestions to Living Proof.  Without limiting the foregoing, Living Proof will be entitled to unrestricted use and other exploitation of User Suggestions for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the User Suggestions. 

d)    Ownership.  All Living Proof Content is owned by Living Proof or its licensors, and is protected by U.S. and international copyright laws, trademark laws and/or other proprietary rights and laws. As between you and Living Proof and its licensors, Living Proof or its licensors own and retain, solely and exclusively, all rights, title and interest in and to the Services, and all Living Proof Content that we or our licensors create and that we make available to you through the Services, including but not limited to any and all copyrights, trademark rights, trade secret rights, patent rights, database rights and other intellectual property and proprietary rights therein. Your use of the Services does not grant you any ownership over any Living Proof Content, and except for the limited license we grant you under this Agreement, your use of the Services does not grant you any license or permission under any copyright, trademark or other intellectual property rights of Living Proof or any third party. We reserve all rights not expressly granted to you in this Agreement.

e)    Trademarks.  LIVING PROOF®, all associated logos, and the other trademarks, service marks, logos and trade names used on the website and Living Proof products are the registered or unregistered trademarks and service marks of Living Proof, its associates, or third parties in the United States and/or other countries.  These trademarks may not be used in connection with any service or products other than those provided by Living Proof, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Living Proof. Any use of such marks, or any others displayed on the website, will inure solely to the benefit of their respective owners.

f)     Service and Content License.  We grant you a limited, non-exclusive, non-sublicensable and non-transferable license to use the Services as they are provided to you by us, only as set forth in this Agreement. You may not reproduce, distribute, adapt, modify, translate, create derivative works from, publish or otherwise use any portion of the Services or Living Proof Content for any purpose without express prior written permission from us or the applicable rights holder, except as follows:

                        i.         You may print or download one copy of a reasonable number of pages of the website for your own personal, non-commercial use and not for further reproduction, publication or distribution. 

                       ii.         If we provide any materials or applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.

You may not modify the Living Proof Content or remove any copyright, trademark or other proprietary notices that have been placed on it. Any commercial exploitation of the website or Living Proof Content without express prior written permission from us is strictly prohibited.

g)    Software.  All software and software-as-a-service (SAAS) used in connection with the Services (“Software”) is proprietary to us or to third parties, and except as may be required to exercise the foregoing license grant, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or reduction of such software to human-readable form is prohibited.  You agree that we may update the Software without notice, at any time and in our sole discretion, and that this Agreement will apply to any updated versions.

 

4.  User Content and User Suggestions

a)    Generally.    You are solely responsible for ensuring that any User Content or User Suggestions you submit to Living Proof complies with any applicable laws and third party rights, including but not limited to any intellectual property rights, privacy rights and publicity rights. You agree that any identifying information included in your User Content or User Suggestions may be used in accordance with our Privacy Policy.

b)    User Content License.  By submitting any User Content to Living Proof, through the website or by email, you agree that Living Proof may use your User Content as reasonably necessary for, or incidental to, its operation of the website and as described in this Agreement and the Privacy Policy, and you grant Living Proof the non-exclusive, worldwide, transferable, perpetual, irrevocable right to publish, distribute, publicly display and perform the User Content and derivative works thereof, including any ideas, concepts, know-how or techniques contained therein,  for any purpose whatsoever, in any media,  including but not limited to using the User Content in connection with advertising and promotional materials and campaigns, and developing, manufacturing and marketing products, services and content incorporating all or part of the User Content, without any notice, approval, attribution, or compensation to you or the provider, author, creator or inventor of the User Content.  You further grant Living Proof the right to use your first name and last initial, and/or your online username, in connection with any User Content or User Suggestions you submit, and you waive all personal rights related to that use, including the rights of privacy and publicity.  None of the User Content will be subject to any obligation of confidence on the part of Living Proof, and Living Proof will not be liable for any use or disclosure thereof.  You acknowledge that third parties may gain access to the User Content, and Living Proof shall in no event be liable to you for any use or misuse of the User Content by any third party.

c)     User Representations.  Living Proof does not regularly edit or control User Content or User Suggestions that you and other users post to or distribute through the website, and will not be in any way responsible or liable for User Content or User Suggestions as posted by a user. By using the website, you represent that any User Content or User Suggestions you submit are in compliance with the terms of Section 5 of this Agreement (“Restrictions”).

d)    Right to Monitor or Remove.  You agree that you bear all risks associated with, your User Content or User Suggestions.  Living Proof does not permit the infringement of intellectual property rights on its website, and will remove User Content or User Suggestions from the website if properly notified that such User Content or User Suggestions infringes on another’s intellectual property rights or otherwise violates these Terms and Conditions. We reserve the right to remove User Content or User Suggestions from the website, in whole or in part, without prior notice, for any reason or for no reason at all. 

We also reserve the right to decide whether User Content or User Suggestions are appropriate and comply with this Agreement for violations other than violations of intellectual property law. We may remove any User Content or User Suggestions and/or terminate a user account for uploading such material in violation of this Agreement at any time, without prior notice and at our sole discretion.

We reserve the right to disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy, and the right to take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the website. 

Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS LIVING PROOF AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we do not undertake to review all material before it is posted on the website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

 

  1. Restrictions.  You agree that you will not use the website to: 

                        i.         Promote any illegal activity, or advocate, promote or assist any unlawful act;

                       ii.         Violate the legal rights (including the intellectual property rights, and rights of publicity and privacy) of others or take any actions that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement and our Privacy Policy;

                     iii.         Transmit any pornographic, obscene, offensive, threatening, harassing, libelous, hate-oriented, harmful, defamatory, racist, illegal, or otherwise objectionable material or content;

                      iv.         Transmit any material or content that attempts to falsely state or otherwise misrepresent your identity or affiliation with a person or entity, or to disguise the origin of any User Content or User Suggestions;

                       v.         Transmit material or content that promotes, provides, or relates to instructional information about illegal activities or promotes physical harm or injury against any individual or group;

                      vi.         Transmit any material or content that contains any statement, formula, direction, recipe, suggestion, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material's readers or others;

                    vii.         Transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

                   viii.         Harvest or otherwise collect information about others, including email addresses, without their consent;

                      ix.         Transmit or encourage the transmission of any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, or right of publicity; or

                       x.         Engage in any other conduct that restricts or inhibits any other person from using or enjoying the website, or which, in Living Proof's sole judgment, exposes Living Proof or any officer, director, employee or agent of Living Proof (each an "Company Affiliate") to any liability or detriment of any type.

 

Additionally, you agree not to:

  1. Decompile, disassemble, reverse engineer, copy, transfer, or otherwise use any  Services except as permitted by this Agreement;

                         ii.       Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.

                       iii.       Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.

                        iv.       Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.

                         v.       Use any device, software or routine that interferes with the proper working of the Website.

                        vi.       Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.

                      vii.       Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.

                     viii.       Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.

                        ix.       Otherwise attempt to interfere with the proper working of the Website.

 

6.  Other Websites and Services

This website may contain links and features that enable you to access other third-party websites or services that are not owned or controlled by us.  This may include links contained in advertisements, including banner advertisements and sponsored links.  Such links are provided for your convenience only.  We do not control these websites or services, and we are not responsible for the contents of any linked site. A link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Living Proof. Please exercise caution before proceeding to any third-party website or entering into any transaction with third parties linked to from the website.

7.  Reliance on Information

The information presented on or through the website, including personalized product recommendations provided in response to User information submissions or answers to quizzes, and ingredient lists, is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the website, or by anyone who may be informed of any of its contents.

This website may include content provided by third parties, including materials provided by other Users, bloggers, or other third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Living Proof, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Living Proof. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

We may update the content on this website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the website may be out of date at any given time, and we are under no obligation to update such material. 

8. Linking to the Website

You may link to or share our website in personal emails or other communications, through your social media accounts, through any specific social media tool offered on this website, or on a non-commercial website that you own and control, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent. You may not cause the website or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.  You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease.  We may withdraw linking permission and/or disable all or any social media features and any links at any time without notice in our discretion.

9. Warranty Disclaimers, Limitations of Liability, Indemnity

DISCLAIMER OF WARRANTIES.  Living Proof makes no representations or warranties of any kind regarding the Services or the Living Proof Content.  YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. LIVING PROOF EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; (ii) THAT THE SERVICES, WEBSITE AND THE LIVING PROOF CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS; (iii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICES, WEBSITE OR THE LIVING PROOF CONTENT; AND (iv) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES, WEBSITE OR THE LIVING PROOF CONTENT.  No advice or information obtained by you from Living Proof, or otherwise through the Services, will create any warranty not expressly stated herein.

LIMITATION OF LIABILITY.  LIVING PROOF, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING FROM THE USE OF THE WEBSITE OR FROM ANY INFORMATION, LIVING PROOF CONTENT, PRODUCTS OR SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE, UNLESS OTHERWISE SPECIFIED IN WRITING.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

Indemnity.  You agree to indemnify and hold Living Proof and its affiliates, subsidiaries, owners, directors, officers, employees and agents harmless from and against any and all claims, demands, suits, proceedings, liabilities, judgments, losses, damages, expenses and costs (including without limitation reasonable attorneys’ fees) assessed or incurred by Living Proof, directly or indirectly, with respect to or arising out of: (i) your failure to comply with this Agreement; (ii) your breach of your obligations under this Agreement; (iii) your use of the rights granted hereunder, including without limitation any claims made by any third parties; (iv) your violation of any third party right, including without limitation any intellectual property, right of publicity, or privacy right; and/or (v) any claim that any of your User Content or User Suggestions caused damage to a third party.

 

10.  Copyright Infringement Claims

Living Proof respects the intellectual property rights of others, complies with the provisions of the Digital Millennium Copyright Act (DMCA) applicable to internet service providers (17 U.S.C. § 512, as amended), and responds to clear notices of alleged copyright infringement. 

In the event you believe that any User Content or User Suggestions on the website infringes your copyright, then please file a notice of infringement with our designated agent: 

Living Proof, Inc.

Attn: Copyright Agent

301 Binney Street

Cambridge MA 01942

copyright@livingproof.com

 

Electronic notification is preferred.  To be effective, any notice submitted to our Copyright Agent must comply with the requirements set forth at 17 U.S.C. § 512(c)(3). That means that the notice must include substantially the following: 

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
  4. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If we take measures to remove or disable content, we will make a good-faith attempt to contact the User who uploaded the content so that he or she may make a counter-notification pursuant to sections 17 U.S.C. § 512(g).  Your complaint, along with your personally identifying information, may be shared with the User who uploaded the content at issue.   It is our policy to document all notifications of alleged infringement on which we act. As with all legal notices, a copy of the notification may be sent to one or more third parties who may make it available to the public.  Please be advised that it is Company’s policy to terminate the accounts of users that repeatedly violate these Terms and Conditions and/or the DMCA Policy.

If you are a user of the website and User Content or User Suggestions that you have submitted has been removed or disabled, you may file a counter-notification pursuant to 17 U.S.C. § 512(g). To be effective, the counter-notification must be a written communication sent to the Copyright Agent listed above that includes the following:

  1. Your physical or electronic signature;
  2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
  3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
  4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Company may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. § 512(c)(1)(C) or an agent of such person.

If you have a claim related to trademarks or intellectual property other than copyright, please contact us at questions@livingproof.com.

 

11.  Applicable Law and Jurisdiction

This website is operated by Living Proof from the United States, and we do not represent or warrant that use of the website, Services, or any component thereof is lawful in other jurisdictions. Access to the website from jurisdictions where such access is illegal is prohibited.  All matters arising from or relating to this Agreement and the use and operation of the website shall be governed by the substantive laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws principles.  Without derogation of the obligation to arbitrate set forth in Section 12 (“Dispute Resolution”) below, you agree to submit to the personal jurisdiction of the state and federal courts located in Boston, Massachusetts, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts.  Any legal suit, action or proceeding arising out of, or related to, these Terms and Conditions or the website shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts in each case located in the City of Boston and Suffolk County, although we retain the right to bring any suit, action or proceeding against you for breach of these Terms and Conditions in any jurisdiction where you reside or are otherwise subject to jurisdiction. If you gain access to the Services from locations outside the United States, you will be responsible for compliance with all local laws of any such other location, and in no event will you use the website, Living Proof Content, User Content, or User Suggestions in violation of U.S. export laws or regulations.

 

12. Dispute Resolution

All disputes arising out of or relating to this Agreement or the Services that are not resolved by mutual agreement shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect (for information on the AAA and its rules, see www.adr.org.) and the further procedures set forth herein, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.  The arbitration shall be conducted in Boston, Massachusetts.  In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court.  The Arbitrator shall have authority to issue any and all remedies authorized by law.  The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq.  Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO.  Any award rendered by the Arbitrator shall be final and binding upon the parties hereto.  In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses.  Notwithstanding the foregoing, you may at your option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction.  The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.

 

13.  Termination of Service

You may discontinue your use of the website at any time.  We may terminate your user account or right to access all or portions of the website at any time, without notice, for any reason or for no reason or for conduct that we believe violates this Agreement and/or is harmful to other users, to Living Proof, to other service or information providers, or to any third parties. After any termination of this Agreement, any license or permission granted to you under Section 3(f) (“Service and Content License”) or Section 8 (“Linking to the Website”) is terminated.  The other terms of this Agreement, including but not limited to any outstanding obligations between you and us, and all remedies for breach will survive and remain enforceable and in full force and effect.

 

14.  Miscellaneous

No delay or omission by Living Proof in exercising any of its rights under this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Living Proof of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.  As used in this Agreement, "including" means "including but not limited to." Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and Living Proof regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You shall not assign or transfer this Agreement or any right or obligation hereunder to any third party. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof, expressed through use of the website, constitutes a “signing” for all purposes.

You consent to receive communications from us electronically, and you agree that we may communicate with you by email, by posting notices on the website, or by making changes to these Terms and Conditions. You agree that all agreements, notices, disclosures and other communications that we provide to you, or that you provide to us, electronically satisfy any legal requirement that such communications be in writing. We are not responsible for any automatic filtering that may be applied to any email notices that we send to any email address you have provided.

The effective date of these Terms and Conditions is February 9, 2017.

Thank you for visiting the Living Proof website.