Here Media User Agreement
Last revised: May 16, 2013
SEC. 18 OF THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH HERE MEDIA. PLEASE READ IT CAREFULLY.
1. Acceptance of Terms of Service
This User Agreement (the "Agreement") applies to all products and services offered by Here Media including but not limited to the websites Heremedia.com, Advocate.com, Out.com, Gay.com, Gay.net and any country-specific or foreign language versions of these websites, web plug-ins and applications, mobile services, applications for smartphones, tablets and other mobile devices, and any other features, content, or applications offered from time to time by Here Media (the “Services”). In addition, when using a particular Services, you will be subject to any guidelines or rules applicable to such Services that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into this Agreement.
By using the Services, you are stating that you understand and agree to be bound by the terms and conditions of this Agreement. If you disagree with anything in this Agreement, please do not use the Services.
2. User Eligibility
Account Registration. To use the Services, you may not have to register to become a member ("Member"). As a Member, however, you will have access to certain Services that non-Members do not have, some of which will enable you and other Members to interact with each other. If you would like to register to become a Member, please complete the account registration process for the appropriate Services. You agree to (a) provide true, accurate, current and complete information as prompted by the registration process and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. You are responsible for maintaining the confidentiality of any password and account and are fully responsible for all activities that occur under your password or account. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. If any information provided by you on the registration form is untrue, inaccurate, not current, or incomplete, or if we have reasonable grounds to so believe, we have the right to suspend or terminate your membership without any right on your part for refund of any fees paid and to refuse to provide you with any future membership. If we have reason to believe that you have registered someone other than yourself, we will cooperate with any law enforcement investigation that may result from such misrepresentations and shall have the right, in our sole discretion, to disclose any information you provided to us in connection with such registration.
Gay.com Members. Gay.com (including the website and mobile applications) is only available to you if you are at least 18 years of age. If you are not 18 years old or older, you are prohibited from becoming a Member of gay.com or otherwise using in any way the gay.com services. By using the Gay.com services, either as a Member or in any other capacity, you represent and warrant to us that you are at least 18 years old.
Children Under 13. Children under the age of 13 are prohibited from registering as a Member or otherwise using any of our Services. We will not knowingly collect or store personal information from anyone under the age of 13.
We reserve the right at any time to charge fees for the Services. In no event will you be charged for the Services unless we obtain your prior agreement to pay such charges. If you do not consent to such charges, however, you may not have access to paid content or certain Services.
4. Changes to Agreement
Members and other users will be notified of any material changes to this Agreement by way of a posting to the applicable Services. Members will also be required to indicate acceptance of the new terms and conditions by way of “click and accept” or similar affirmative action. If you do not agree to the new terms and conditions, you should discontinue your use of the Services. All changes to this Agreement will become effective immediately or upon a Member’s confirmed acceptance, as applicable. Changes will not apply retroactively.
5. Availability of Services
We reserve the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any such action.
6. Usage Rules
Following are some basic rules that apply to the Services and that you agree to follow. If you violate any of the rules, or if we have reasonable grounds to so believe, we have the right, in addition to pursuing any and all legal remedies available, to deny you access to the Services, to suspend or terminate your membership without any right of refund to you and to refuse to provide you with any future membership. You agree not to use the Services to:
1. upload, store, post, email or otherwise transmit any: (a) material that is inaccurate, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, racist, bigoted or otherwise objectionable, (b) material that you do not have a right to transmit under any applicable law or under contractual or fiduciary relationships, (c) material that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party, (d) advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, except where specifically permitted, or (e) material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
2. connect in an unauthorized manner (i.e., by means other than the technology provided by us) to the community environment we provide for use by our Members on the Services or facilitate such unauthorized connections through the provision of software or other computer code specifically designed to allow a user to make such unauthorized connections to our community environment;
3. copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of the technology or any other software we provide through the Services;
4. impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
5. forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services;
6. disrupt the normal flow of dialogue, cause a screen to scroll faster than other users of the Services are able to type (e.g., "flooding"), or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
7. interfere with or disrupt the Services or servers, networking and computing equipment or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
8. initiate, facilitate, participate in or distribute a denial of service attack, exploit any documented or undocumented vulnerability in the Services and its component networking or computing equipment, or otherwise initiate, facilitate, or participate in any disruptive action aimed at the Services or the Internet in general;
9. try to gain access to areas that are private to Here Media or to other Services users;
10. violate any applicable local, state, national or international law or regulation;
11. stalk or otherwise harass another;
12. harm minors in any way, including, without limitation, to establish unlawful contact with minors (whether on or off the Services);
13. collect, intercept or harvest Member names; collect, intercept or store personal data about other users of the Services; or solicit or attempt to discover a user's password, Member name, or other registration or usage information without the user's express knowledge and consent;
14. engage in or run raffles, lotteries, contests, sweepstakes or other games of chance;
15. promote or provide instructions or information about how to engage in illegal conduct or commit illegal activities or activities intended to cause disruption to the Services, promote physical harm or injury, or promote any illegal act or act intended to cause harm or disruption to the Services or the Internet in general;
16. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
17. provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; or
18. store any information or use any Web page or directory you create, including any Member profile or posting in or to a public area, on or through the Services as storage for remote loading or as a door or signpost to another Web page, whether inside or outside the Services.
8. User Submissions
No pre-screening. You acknowledge and accept that we do not pre-screen material posted or transmitted on or by the Services. In particular, we do not conduct background checks or otherwise pre-screen Members or other users of the Services for felony or sex offense convictions. Please take appropriate safety measures to increase awareness of possible risks associated with meeting someone you have met through the use of the Services.
Your Submissions. Through certain Services you may post, upload, submit, or otherwise share material ("Submissions") for viewing by others or view Submissions of other users (e.g., communities, forums, personals, user profiles, discussion rooms or video conferencing rooms). By making a Submission, you (a) automatically grant us and our affiliates and licensees the royalty-free, perpetual, irrevocable, nonexclusive right and license to use, reproduce, modify, adapt, publish, translate, publicly perform and display and distribute the content of the Submission (in whole or in part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or hereafter developed, (b) permit any other user of the Services to access, view, store, or reproduce the Submission for that user's personal use, and (c) represent and warrant that public posting and use of your Submission by us and our affiliates and licensees will not infringe or violate the rights of any third party.
Review of Your Submissions. We and our designees shall have the right (but not the obligation) in our sole discretion to review and edit, delete or refuse to post any Submissions, including but not limited to messages, profiles, images, personals, reviews, and comments. Without limiting the foregoing, we and our designees shall have the right to remove any material that violates this Agreement, we believe in good faith may create liability for us, or we deem is otherwise objectionable. You acknowledge and agree that we may preserve material and may disclose material if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any material violates the rights of third parties; or (d) in our sole judgment, protect the rights, property, or our personal safety, our users and Members or the public.
9. Dealings with Advertisers
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Services.
10. Links and Third-Party Sites
Our provision of a link to any non-Services site or location is for your convenience and does not signify our endorsement of such non-Services site or location or its contents. We shall not be responsible for any information, software, or links found at any non-Services site or location, or for any transactions conducted at or through any linked non-Services site or location.
11. End User Licenses
Some of the Services may require or include downloadable software. To use such Services you must have a compatible devise. You acknowledge that this software may update automatically on your device once a new version or feature is available. You hereby consent to such automatic updates and agree that these Terms of Service shall apply to all such updates.
Here Media gives you a personal, worldwide, royalty-free, non-assignable, non-exclusive, and revocable license to use the software provided to you by Here Media as part of the Services. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Here Media, in the manner permitted by these Terms of Service. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission.
Some of the Services may include open source or third-party software that is covered by the applicable open source or third-party end user license agreement, if any, authorizing use of such code. There may be provisions in the open source license that expressly override some of these terms.
12. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. ALL SUCH MATERIALS, INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ARE PROVIDED WITHOUT, AND HERE MEDIA AND LICENSORS HEREBY EXPRESSLY DISCLAIM, ANY WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, OR NON-INFRINGEMENT. HERE MEDIA AND LICENSORS DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL FUNCTION WITHOUT INTERRUPTION, THAT THE SERVICES ARE OR WILL BE ERROR- OR DEFECT-FREE, THAT ANY SUCH DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SERVICES AND, AS APPLICABLE, THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM HERE MEDIA, ITS SUBSIDIARIES, LICENSORS OR OTHERWISE THROUGH YOUR USE OF THE SERVICES SHALL CREATE ANY WARRANTY. FURTHER, HERE MEDIA AND LICENSORS DO NOT WARRANT OR REPRESENT THAT THE USE OR THE RESULTS OF THE USE OF ANY MATERIALS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SERVICES WILL BE CORRECT, ACCURATE, TIMELY OR RELIABLE.
13. LIMITATIONS ON LIABILITY
IN NO EVENT SHALL HERE MEDIA OR LICENSORS, OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING OR DISTRIBUTING THE SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING AND UNDER ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY), THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE SERVICES, ANY CHANGES TO THE SERVICES OR THESE TERMS OF SERVICE, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. HERE MEDIA AND LICENSORS, AND ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING OR DISTRIBUTING THE SERVICES ARE NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. IF YOU ARE DISSATISFIED WITH THE SERVICES, OR ANY MATERIALS, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. THE FOREGOING LIMITATIONS ON LIABILITY SHALL BE APPLICABLE EVEN IF HERE MEDIA OR THE APPLICABLE THIRD PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY AND HOLD HERE MEDIA, ITS LICENSORS AND ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING OR DISTRIBUTING THE SERVICES, AS WELL AS EACH OF THEIR RESPECTIVE PARENTS, AFFILIATES OR SUBSIDIARIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, COSTS, FEES (INCLUDING ATTORNEYS' FEES) AND EXPENSES THAT SUCH PARTIES MAY INCUR AS A RESULT OF OR ARISING OUT OF YOUR (OR, IN THE CASE OF MEMBERS, ANYONE USING YOUR ACCOUNT'S) USE OF, OR CONDUCT WITH RESPECT TO, THE SERVICES.
15. ALLOCATION OF RISK
YOU AGREE THAT THE DISCLAIMER OF WARRANTIES, LIMITATIONS ON LIABILITY, AND INDEMNIFICATION PROVISIONS SET FORTH IN THESE TERMS OF SERVICE REPRESENT AN AGREED-UPON ALLOCATION OF RISK AND FORM AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND HERE MEDIA, WITHOUT WHICH WE WOULD NOT ENTER INTO THESE TERMS OF SERVICE OR PROVIDE THE SERVICES.
16. Proprietary Rights
You acknowledge and agree that all content and materials available on or through the Services are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. You may print or download one copy of the materials or content on the Services on any single computer for your personal, non-commercial use, provided that such materials remain unaltered and are accompanied by a clearly visible copy of any copyright or other proprietary notice appearing on such materials. Otherwise, you may not republish, retransmit, reproduce or otherwise use the materials or content. Systematic retrieval of data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from us is prohibited. In addition, use of the content or materials for any purpose not expressly permitted in these Terms of Service is prohibited. Except as expressly authorized by us, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from such materials or content. To obtain such authorization, contact the Here Media legal department by mail at:
Attn: Legal Department
10990 Wilshire Blvd, Penthouse
Los Angeles, CA 90024
17. Copyright Infringement Claims
Here Media respects the intellectual property rights of others. Pursuant to Title 17 U.S.C. § 512, as amended by Title II of the Digital Millennium Copyright Act (the "Act"), Here Media has implemented procedures for receiving written notification of claimed copyright infringements and for processing such claims in accordance with the Act. If you believe your work has been copied and is accessible through the Services in a way that constitutes copyright infringement, please fill out a Notice of Infringement Form and mail it to the following agent of Here Media for notice of claims of copyright infringement:
Attn: Copyright Administrator
10990 Wilshire Blvd, Penthouse
Los Angeles, CA 90024
The information requested by the Notice of Infringement Form substantively complies with 17 U.S.C. § 512(c)(3)(A), which provides:
To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) 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.
(iii) 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 the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has 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.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions above shall not be considered as providing actual knowledge or an awareness of facts or circumstances from which infringing activity is apparent. Please provide a Notice of Infringement Form each time you wish to report alleged acts of infringement. Please note that we will, in appropriate circumstances, terminate the account of any Member who repeatedly posts infringing material on the Services.
18. BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED.
Binding Arbitration. You and Here Media agree that any dispute, claim or controversy arising out of or relating in any way to the Services, including our websites, user interfaces, mobile applications, these Terms of Service (including any future changes) and this Arbitration Agreement, shall be resolved exclusively through final and binding arbitration instead of in courts of general jurisdiction, except that you may assert claims in small claims court, if your claims qualify. ARBITRATION MEANS THAT THE DISPUTE WILL BE RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this Arbitration Agreement.
If you elect to seek arbitration, you must first send to Here Media, by certified mail, a written Notice of your claim ("Notice"). The Notice to Here Media should be addressed to: General Counsel, Here Media Inc., 10990 Wilshire Blvd., Penthouse, Los Angeles, CA 90024 ("Notice Address"). The Notice should also be sent via electronic mail to [email protected]. If Here Media elects to seek arbitration, it will send a written Notice to you by U.S. Mail to your address, if we have it, or otherwise to your email address. A Notice, whether sent by you or by us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Here Media and you do not reach an agreement to resolve the claim within 60 days after the Notice is received, you or Here Media may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Here Media or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. This Agreement governs to the extent it conflicts with the AAA Rules. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. SUCH AWARD WILL BE BINDING AND FINAL, EXCERPT FOR ANY RIGHT OF APPEAL PROVIDED BY THE FAA, AND MAY BE ENTERED IN ANY COURT HAVING JURISDICTION OVER THE PARTIES FOR PURPOSES OF ENFORCEMENT.
You or Here Media may initiate arbitration in either Los Angeles County, California or the county in which you reside. In the event that you select the county of your residence, Here Media may transfer the arbitration to the County of Los Angeles in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator. If the value of the relief sought is $10,000 or less, you or Here Media may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Here Media subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or Here Media, unless the arbitrator requires otherwise. The payment of all filing, administration and arbitrator fees shall be governed by the AAA Rules, unless otherwise determined by law.
Class Action Waiver. You and Here Media agree that each 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. NEITHER YOU NOR HERE MEDIA WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. Unless both you and Here Media agree otherwise, the arbitrator may not consolidate or join more than one person's or party's claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS (MEMBER, VISITOR OR OTHERWISE) OF THE SERVICES.
Severability. If any clause within this Section 18 (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Section 18, and the remainder of this Section 18 will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Section 18 will be unenforceable, and the claim will be decided by a court and you and Here Media each agree to waive in that instance, to the fullest extent allowed by law, any trial by jury.
Time to File Claim. To the extent permitted by law, any claim or dispute under these Terms of Service must be filed within one year in small claims court or an arbitration proceeding. The one-year period begins when the claim could first be filed or Notice could first be given. IF A CLAIM OR DISPUTE IS NOT FILED WITHIN ONE (1) YEAR, IT IS PERMANENTLY BARRED.
This Section 18 shall survive any termination of this Agreement.
19. Governing Law and Jurisdiction
You agree that the laws of the State of California will apply to all matters relating to this Agreement, as they would to agreements made and entered into entirely in California, by California residents, notwithstanding your actual place of residence or domicile.
Unless you and we agree otherwise, in the event that the Arbitration Agreement above is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Here Media must be resolved exclusively by a state or federal court located in Los Angeles County, California. You and Here Media agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes.
This Agreement contains the complete and final statement of the understanding between you and Here Media with respect to the subject matter of this Agreement and supersedes any and all prior or contemporaneous negotiations, agreements or communications, whether written or oral, between you and us concerning the subject matter of this Agreement.
If any provision of this Agreement is rendered by a court or governmental agency of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality or unenforceability shall not affect the remainder of this Agreement, which shall remain in full force and effect and be enforced in accordance with its remaining terms.
The waiver by us of a breach or default of any of the provisions of this Agreement by you shall not be construed as a waiver of any succeeding breach of the same or other provisions; nor shall any delay or omission on the part of the Here Media to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any breach or default by you.
You agree that, regardless of any statute or law to the contrary, any claim or cause of action that you may have arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in this Agreement are solely used for convenience and have no legal or contractual significance.
All provisions of this Agreement that, by their nature, survive termination of this Agreement will survive termination including, without limitation, the Acceptance of Terms of Service, Usage Rules, User Submissions, Links and Third-Party Sites, Disclaimer of Warranties, Limitations on Liability, Indemnification, Allocation of Risk, Proprietary Rights, Arbitration Agreement and Class Action Waiver, Governing Law and Jurisdiction, and General sections of this Agreement.