Last Updated: November 20, 2015
Welcome to the website offered by Esplota, Inc. (“Esplota,” “we,” or “us”). These Terms of Service (“Terms”) apply to all content, materials, functionality and services made available by Esplota on its website located at www.esplota.com and any related subdomains (“Service”).
THESE TERMS CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND ESPLOTA, AND YOU SHOULD READ AND BE SURE YOU UNDERSTAND THEM BEFORE USING THE SERVICE. BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT USE – AND ARE NOT AUTHORIZED TO USE – ALL OR ANY PORTION OF THE SERVICE.
AS FURTHER DESCRIBED BELOW, THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1.1 Description. The Service provides users a social, entertainment and viral news platform. Users can also apply to contribute editorial content to the Service.
1.2 Eligibility; Subscribing Entities. THE SERVICE MAY ONLY BE ACCESSED AND USED BY PERSONS WHO ARE 18 YEARS OF AGE OR OLDER. IF YOU ARE UNDER 18 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. If you wish to use the Service on behalf of a company, entity or organization (each, a “Subscribing Entity”), then you represent and warrant that you: (a) are an authorized representative of that Subscribing Entity with the authority to bind such entity to these Terms and (b) agree to be bound by these Terms on behalf of such Subscribing Entity.
1.3 Changes to These Terms. Esplota reserves the right to revise these Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Service. Revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision. Your continued use of the Service after a revised version of these Terms has been posted on the Service by Esplota constitutes your binding acceptance of the revised Terms. Esplota will endeavor to provide you with prior notice of any material changes to these Terms by posting them to the Service. Notwithstanding the preceding sentences of this Section 1.3, no revisions to these Terms will apply to any dispute between you and Esplota that arose prior to the date of such revision.
1.4 Evolving Nature of Service. The Service is continually evolving and changes to the Service may be made at any time. If you do not like the Service or in any way disagree with these Terms, we hope you will let us know and give us constructive feedback. Please feel free to e-mail us at any time at [email protected] — However, your only remedy in the event you are dissatisfied with the Service or these Terms is to discontinue your use of the Service.
1.5 Consideration. You understand and agree that these Terms are entered into in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
3. Use of the Service.
3.1 Third Party Sites. The Service may include links to external sites and applications owned or controlled by third parties (collectively, “Third Party Sites”). You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on third party websites or applications. You assume all risk and we disclaim all liability arising from your use of them.
3.2 Prohibitions. In using the Service, you further agree not to:
(a) Create a false identity or impersonate another person or entity in any way;
(b) Restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person obtained from the Service without the consent of such person, or collect information about users of the Service not otherwise provided herein;
(c) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or any part thereof, or attempt to do any of the foregoing;
(d) Gain unauthorized access to the Service, to other users’ names or personally identifiable information, or to other computers or websites connected or linked to the Service;
(e) Reproduce, distribute, publicly display, publicly perform, sell, trade, resell or exploit any portion of the Service, use of the Service, access to the Service or content obtained through the Service, for any purpose other than expressly permitted by these Terms;
(f) Transmit or make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
(g) Remove, disable, damage, circumvent or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service or any content on the Service, or features that enforce limitations on the use of the Service or any content on the Service;
(h) Use any scraper, spider, robot or other automated means of any kind to access the Service, deep-link to any feature or content on the Service, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Service;
(i) Interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of such networks or servers;
(j) Violate any applicable federal, state or local laws or regulations or these Terms; or
(k) Assist or permit any persons in engaging in any of the activities described above.
4. Information Provided to Esplota.
4.1 Registration/Sign-up. You may be required to register with Esplota to gain access to certain portions or features of the Service. You agree to provide true, accurate, current, and complete information as requested in any registration or sign-up form that you submit to Esplota through the Service, and to update this information promptly, and as necessary, to keep it current and accurate.
4.2 Log In Credentials. You are responsible for maintaining the security of your log in credentials required to use or access certain portions or features of the Service, and are fully responsible for all activities that occur through the use of your credentials by you or any third party. You agree to notify Esplota immediately at [email protected] if you suspect or know of any unauthorized use of your log in credentials or any other breach of security with respect to your account. Esplota will not be liable for any loss or damage arising from unauthorized use of your credentials.
5. Service Security. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Esplota’s sole discretion. Esplota reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service.
6. User Content.
6.1 Definition. “User Content” means any content that users upload, post or transmit (collectively, “Post”) to or through the Service including, without limitation, literary works, photographs, audiovisual works, musical works, sound recordings, artwork and any other work subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws, but specifically excluding any Contributor Content (defined in Section 7 below).
6.2 Intellectual Property Rights. YOU RETAIN ALL RIGHTS IN ANY USER CONTENT YOU POST TO THE SERVICE. BY POSTING USER CONTENT ON OR THROUGH THE SERVICE YOU ARE MERELY GRANTING COMPANY A LICENSE PURSUANT TO THESE TERMS.
6.3 License Grants. You hereby grant to Esplota an unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from Third Party Sites, and otherwise exploit and use (collectively, “Use”) all User Content you Post to or through the Service by any means, through any media and formats now known or hereafter developed, for the purposes of (a) advertising, marketing, and promoting Esplota and the Service; (b) sharing information about your User Content with third parties and Third Party Sites; and (c) Using your User Content on and through the Service as authorized in these Terms. You further grant Esplota a royalty-free license to use your user name, image, and likeness to identify you as the source of any of your User Content. You must not post any User Content on or through the Service or transmit to Esplota any User Content that you consider to be confidential or proprietary. Any User Content posted by you to or through the Service or transmitted to Esplota will be considered non-confidential and non-proprietary, and treated as such by Esplota, and may be used by Esplota for any purpose or disclosed by Esplota to any third party with or without notice to you and without any liability to Esplota. For the avoidance of doubt, the rights granted in the preceding sentences of this Section 6.3 include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings), and publicly perform sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting to Esplota the right to Use your User Content without the obligation to pay royalties to any third party, including, but not limited to, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a PRO, a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of User Content.
6.4 You Must Have Rights to the Content You Post. You must not Post any User Content to the Service if you are not the copyright owner of or are not fully authorized to grant rights in all of the elements of the User Content you intend to Post to the Service. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post such sound recordings to the Service unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Esplota under these Terms. You represent and warrant that: (a) you own the User Content Posted by you on or through the Service or otherwise have the right to grant the license set forth in these Terms; (b) the Posting and Use of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; (c) the Posting of your User Content on the Service will not require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (d) the Posting of your User Content on the Service does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of Posting your User Content on the Service.
6.5 Specific Rules for Musical Works. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through these Terms to us. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms or have such music publisher enter into these Terms with us. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant us the licenses in these Terms.
6.6 Through-To-The-Audience Rights. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of Third Party Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such Third Party Sites via the Service.
6.7 Waiver of Rights to User Content. By Posting User Content to or through the Service, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any User Content you Post to or through the Service.
6.8 No Liability. For the avoidance of doubt, Esplota will not be liable for any unauthorized use of User Content by any other user or third party.
7. Contributor Terms. If you are interested in contributing editorial or other content that may be featured on the Service (“Contributor Content”), then please visit https://www.esplota.com/colabora-con-nosotros/
8. Intellectual Property Rights.
8.1 Generally. The content made available on or through the Service, including without limitation, any text, graphics, photos, software, music, videos, sounds, and interactive features, may be protected by copyright or other intellectual property rights, and is owned by Esplota or third party licensors of Esplota (collectively, “Esplota Content”). No Esplota Content may be copied, reproduced, uploaded, republished, transmitted, posted, or distributed in any way without express written permission of Esplota or as otherwise specified in these Terms or permitted by functionalities of the Service. Modification of Esplota Content is a violation of the copyrights and other proprietary rights of Esplota or its licensors. All design rights, databases and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and related goodwill are proprietary to Esplota.
8.2 Trademarks. All trademarks, service marks, logos and trade names on the Service, whether registered or unregistered, are proprietary to Esplota or to other companies where so indicated. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior express written consent of the appropriate owner thereof.
8.3 License Grant to You. You are hereby granted a limited, non-assignable, revocable license to access and use the Service for your personal, non-commercial use, including any software included with the Service, as provided for in these Terms and pursuant to the authorized features of the Service without modification, so long as you agree to these Terms, subject to Esplota’s right to terminate your right to use the Service in its sole discretion at any time.
8.4 No Implied Rights. There are no implied licenses granted in these Terms and all rights not granted to you as a user are expressly reserved by Esplota.
9. Feedback. We appreciate hearing from our users and welcome your comments regarding the Service. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (collectively, “Feedback”): (a) you hereby grant to us a worldwide, non-exclusive, irrevocable, perpetual, royalty-free and unlimited license to use the Feedback, whether written or oral, in any manner whatsoever; (b) we will not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any Feedback; and (c) we will be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
10. Copyright Policy.
10.1 General. Esplota respects the intellectual property of others. Infringing activity will not be tolerated on the Service. Esplota’s intellectual property policy is to (a) remove or disable access to material that Esplota believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service, and (b) remove any content made available on the Service by “repeat infringers.” Esplota considers a “repeat infringer” to be any person that has uploaded User Content, Contributor Content or Feedback to or through the Service and for whom Esplota has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content, Contributor Content or Feedback. Esplota has discretion, however, to terminate any user’s right to use the Service after receipt of a single notification of claimed infringement or upon Esplota’s own determination.
10.2 Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Esplota may share your Notification of Claimed Infringement with the user alleged to have infringed a right you own or control, and you consent to Esplota making such disclosure. Your communication must include the following:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
(b) Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
(c) Identification of the specific 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 Esplota to locate the material;
(d) Information reasonably sufficient to permit Esplota to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
(e) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) 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.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
10.3 Designated Agent. Esplota’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted by mail at 244 Fifth Avenue, Suite R224, New York, NY 10001, or by email at [email protected]
10.4 False Notifications of Claimed Infringement and Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Esplota] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Esplota reserves the right to seek damages from any party that submits a notification under this Section in violation of the law.
11. Indemnity. You agree to indemnify and hold Esplota, and its officers, directors, employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the Service or Esplota Content, (b) your violation of these Terms, or (c) your User Content or Contributor Content. Esplota will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if Esplota is unable to communicate with you in a timely manner because of an inactive e-mail address for you, your indemnification obligation will continue notwithstanding Esplota’s inability to contact you in a timely manner.
12. Warranty Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ESPLOTA HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE AND ANY MATERIALS OR CONTENT (INCLUDING USER CONTENT AND CONTRIBUTOR CONTENT) LOCATED THEREON, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
13. Limitation of Liability. IN NO EVENT WILL ESPLOTA OR ITS OFFICERS, DIRECTORS, LICENSORS, SUPPLIERS, SUCCESSORS OR ASSIGNS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICE, OR ANY MATERIALS, CONTENT (INCLUDING USER CONTENT AND CONTRIBUTOR CONTENT) MADE AVAILABLE THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF ESPLOTA IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ESPLOTA BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED ONE HUNDRED DOLLARS.
14. Basis of the Bargain. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ESPLOTA, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND ESPLOTA IN LIGHT OF ESPLOTA’S OFFERING MANY OF THE FUNCTIONALITIES OF THE SERVICE FOR FREE, ESPLOTA’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. Term and Termination.
15.1 Term. These Terms will be effective commencing with your first use of the Service and will remain in full force and effect throughout your use of the Service, until such time as you cease all use of the Service, subject to the Survival provision of these Terms.
15.2 Termination. Esplota may terminate your use of the Service or any features or functionalities of the Service at any time and for any reason, with or without notice, for conduct violating these Terms or upon Esplota’s sole determination. You hereby agree to Esplota’s broad right of termination. You agree that if your use of the Service is terminated pursuant to these Terms, you will not attempt to use the Service, and further agree that if you violate this restriction after being terminated, you will indemnify and hold us harmless from any and all liability that we may incur therefor. You are free to terminate your use of the Service at any time; you can simply choose to stop visiting or using any aspect of the Service.
16. Jurisdictional Matters. The Service is controlled and operated by Esplota from its offices within the State of New York. Esplota makes no representation that materials on the Service or through the Service are appropriate or available for use in other locations. Those who choose to access or use the Service from other locations, including from outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
17. Dispute Resolution.
17.1 Esplota is not a party to, has no involvement or interest in, makes no representations or warranties as to, and has no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any third party in connection with your use of the Service. Disputes between you and Esplota are subject to this Section 17.
17.2 Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND ESPLOTA AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a jury or judge, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(a) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Esplota, to you via any other method available to Esplota, including via e-mail. The Notice to Esplota should be addressed to Esplota Inc., 244 Fifth Avenue, Suite R224, New York, NY 10001, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (the “Demand”). If you and Esplota do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Esplota may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org. If you are required to pay a filing fee to commence an arbitration against Esplota, then Esplota will promptly reimburse you for your confirmed payment of the filing fee upon Esplota’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
(b) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Esplota agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (b) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) No Class Actions. YOU AND ESPLOTA AGREE THAT YOU AND ESPLOTA MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION 17.2 SHALL BE NULL AND VOID.
(d) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of New York in conducting the arbitration. You acknowledge that these Terms and your use of the Service evidence a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
17.3 Choice of Law; Choice of Forum. These Terms and your use of the Service shall be governed by the substantive laws of the State of New York without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Esplota under these Terms shall be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and you and Esplota hereby submit to the personal jurisdiction and venue of these courts and waive any defense of inconvenient forum.
17.4 Equitable Relief. The foregoing provisions of this Dispute Resolution Section do not apply to any claim in which Esplota seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by Esplota or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Esplota, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms.
17.5 Claims. You and Esplota agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
17.6 Improperly Filed Claims. All claims you bring against Esplota must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to this Dispute Resolution Section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution Section, Esplota may recover attorneys’ fees and costs up to $5,000, provided that Esplota has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
18.2 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. No failure or delay on the part of Esplota in the exercise of any power or right under these Terms shall operate as a waiver thereof. No single or partial exercise of any right or power under these Terms shall operate as a waiver of such right or of any other right or power. The waiver by Esplota of a breach of any provision of these Terms shall not operate or be construed as a waiver of any other or subsequent breach of these Terms.
18.3 Severability. If any provision of these Terms shall be 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.
18.4 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Esplota without restriction. Any assignment attempted to be made by you in violation of these Terms shall be void. These Terms will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns.
18.5 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Esplota as a result of these Terms or use of the Service.
18.6 Survival. Sections 1.3, 1.5-1.6 and 3-18 will survive any termination of these Terms.
18.7 Headings. The heading references in these Terms are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
18.8 Communication. You can contact Esplota by email at [email protected], by mail at Esplota Inc., 244 Fifth Avenue, Suite R224, New York, NY 10001.