Terms and Conditions

TERMS OF SERVICE

Effective Date: April 23, 2015.

PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE.

Introduction and Overview

Welcome!  You have arrived at www.usd.solarelectricpower.org and/or are otherwise interacting with our Service (defined below), which is owned and operated by Smart Electric Power Alliance (“SEPA”).  These Terms govern your use of any online service location (e.g., website) that posts a link to these Terms (“Site”) (including both mobile and online versions).  It also applies to your use of all databases, features, widgets, plug-ins, applications, content, downloads and/or other services that (i) we own and control and make available through a Site, and/or (ii) that post or link to these Terms (collectively, with the Site, the “Service”), regardless of how you access or use it, whether via computer, mobile device or otherwise.  By using the Service, you agree that SEPA may change, alter, or modify the settings or configurations on your Device (defined below) in order to allow for or optimize your use of the Service.  By interacting with and/or using the Service, you signify your assent and agreement to these Terms.  If you do not agree to these Terms, you must not use the Service.

1.                  Service Content, Ownership, Limited License, and Rights of Others.

A.                Content.  The Service contains a variety of: (i) materials and other items relating to SEPA and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of SEPA (collectively,  “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). 

B.                 Ownership.  The Service (including past, present, and future versions) and the Content are owned or controlled by SEPA and our licensors and certain other third parties.  All right, title, and interest in and to the Content available via the Service is the property of SEPA or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.  SEPA owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Service. 

C.                Limited License.  Subject to your strict compliance with these Terms and any separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions (in each such instance, and collectively “Additional Terms”), SEPA grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download and copy (temporary storage only of web site and a single Device download and storage of the mobile app), display, view, use, play the Content on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) and/or print one copy of the Content (excluding source and object code in raw form or otherwise) as it is displayed to you.  The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in SEPA’s sole discretion, and without advance notice or liability.  In some instances, we may permit you to have greater access to and use of Content subject to certain Additional Terms. 

D.                Rights of Others.  In using the Service, you must respect the intellectual property and other rights of SEPA and others.  Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.  SEPA respects the intellectual property rights of others. 

Reservation of All Rights Not Granted As To Content and Service.  These Terms and any applicable Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service.  No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.  All rights not expressly granted to you are reserved by SEPA and its licensors and other third parties.  Any unauthorized use of any Content or the Service for any purpose is prohibited.            

2.                  Content You Submit.

A.                General.  SEPA may now or in the future offer users of the Service the opportunity to post, transmit or otherwise make available on or submit to or through the Service, or otherwise submit to us, messages, text, illustrations, files, images, graphics, photos, comments, responses, information, content, data, questions, suggestions, or other information or materials and the ideas contained therein (collectively, “User-Generated Content”).  SEPA may allow you to do this through contact us tools, e-mail, and other communications functionality.  Subject to the rights and license you grant in these Terms, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.

B.                 Non-Confidentiality of Your User-Generated Content.  You agree that (a) your User-Generated Content will be treated as non-confidential and non-proprietary by us – regardless of whether you mark it “confidential,” “proprietary,” or the like – and will not be returned, and (b) to the maximum extent permitted by applicable law, SEPA does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content.  Upon SEPA’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any applicable Additional Terms.  You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content and do so at your own risk. 

In your communications with SEPA, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or evensuggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”).  Any Unsolicited Ideas and Materials you submit are deemed User-Generated Content and licensed to us as set forth below.  In addition, SEPA retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials.  SEPA’s receipt of your Unsolicited Ideas and Materials is not an admission by SEPA of their novelty, priority, or originality, and it does not impair SEPA’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

C.                License to SEPA of Your User-Generated Content.  Except as otherwise described in any applicable Additional Terms (such as a contest official rules), which specifically govern the submission of your User-Generated Content, you hereby grant to SEPA, and you agree to grant to SEPA, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.  Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services.  You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so.  In order to further effect the rights and license that you grant to SEPA your User-Generated Content, you also hereby grant to SEPA, and agree to grant to SEPA, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you.  Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you.  To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.  You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 2(C).

D.                SEPA’s Exclusive Right to Manage Our Service.  SEPA may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and SEPA may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner.  Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms.  Such User-Generated Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service or elsewhere.

E.                 Representations and Warranties Related to Your User-Generated Content.  Each time you submit any User-Generated Content, you represent and warrant that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant SEPA the rights to it that you are granting by these Terms and any Additional Terms, all without any SEPA obligation to obtain consent of any third party and without creating any obligation or liability of SEPA; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to SEPA’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms (including the Rules) or any applicable Additional Terms, or cause injury or harm to any person.

F.                 Enforcement.  SEPA has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at SEPA’s cost and expense, to which you hereby consent and irrevocably appoint SEPA as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest). 

Alerting Us of Violations.  If you discover any content that violates these Terms, then you may report it to us at usd@solarelectricpower.org 
3.                  Service and Content Use Restrictions

A.                Service Use Restrictions.  You agree that you will not: (i) use the Service for any political purpose; (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to SEPA; (iv) to the maximum extent permitted by applicable law, reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, SEPA, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including e-mail addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.

B.                 Content Use Restrictions.  You also agree that, in using the Service, you: (i) will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) will not make any modifications to such Content; (vi) will not sell, lease, rent, or exploit for profit such Content; (vii) will not copy, reproduce, archive, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use such Content in any way that conflicts with these Terms or applicable Additional Terms and absent labeling the Content as belonging to SEPA unless you receive prior written consent of an officer of SEPA, or in the case of Content from a licensor, the owner of the Content; and (viii) will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.

C.                Availability of Service and Content.  SEPA may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in SEPA’s sole discretion, and without advance notice or liability. 

Reservation of All Rights Not Granted as to Content and Service.  These Terms and any applicable Additional Terms include only narrow, limited grants of rights to make use of Content and to use and access the Service.  No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise.  All rights not expressly granted to you are reserved by SEPA and its licensors and other third parties.  Any unauthorized use of any Content or the Service for any purpose is prohibited.                

4.                  Accounts

In order to access or use some (or potentially all) of the features on the Service, you must first apply for membership.  Further information is available at www.usd.solarelectricpower.org.  We may make registration available online.  The Service’s practices governing any resulting collection use, disclosure and management of your personal information are disclosed in its Privacy Policy.  If you are under the age of eighteen (18), then you are not permitted to register as a user or otherwise use the Service or submit personal information to us.

If you register for any feature that requires a password and/or username, then you will be assigned a password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password), which we recommend you change, and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive.  We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it, continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.

We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. 

If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any applicable Additional Terms, or any applicable law, then we may suspend or terminate your account.  We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability. 

5.                  Notices, Questions and Service

You agree that: (1) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the home page of the Service, or in another reasonable manner; and (2) we may contact you by mail or email sent to the address provided by you.  All legal notices to us must be sent to: SEPA, 1220 19th Street, NW, Suite 800, Washington DC 20036 (Attention: Department of Operations).  If you have a question regarding using the Service, you may contact SEPA Customer Support by sending an email to usd@solarelectricpower.org or calling us at (202) 857-0898.  You acknowledge that the provision of support is at SEPA’s sole discretion and that we have no obligation to provide you with customer support of any kind.  We may provide you with support from time to time, at our sole discretion.

6.                  Links By You To the Service

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with SEPA or cause any other confusion, and (c) the links and the content on your website do not portray SEPA or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to SEPA.  SEPA reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

7.                  Third-Party Sites; Advertisements; Dealings with Third Parties

A.                Third-Party Content and Sites; Advertisements.  The Service may contain third party plug-ins, applications, ads, tools and/or other content, and/or links to third-party websites or other services that are not owned, controlled or operated by SEPA (collectively, “Third-Party Sites”), including services operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with SEPA.  We may also host our content, apps and tools on Third-Party Sites.  SEPA may have no control over the content, operations, policies, terms, or other elements of Third-Party Sites, and SEPA does not assume any obligation to review any Third-Party Sites.  SEPA does not necessarily endorse, approve, or sponsor any Third-Party Sites, or any third-party content, advertising, information, materials, products, services, or other items.  Furthermore, SEPA is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Third-Party Sites.  Finally, SEPA will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these Third-Party Sites.  Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Third-Party Sites.  SEPA DISCLAIMS ALL LIABILITY IN CONNECTION THEREWITH.

B.                Dealings with Third Parties.  Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Third-Party Sites or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like).  SEPA disclaims all liability in connection therewith.

8.                  Dispute Resolution

Certain portions of this Section 8 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act.  You and SEPA agree that we intend that this Section 8 satisfies the “writing” requirement of the Federal Arbitration Act.  This Section 8 can only be amended by mutual agreement.

A.                First – Try to Resolve Disputes and Excluded Disputes.  If any controversy, allegation, or claim arises out of or relates to the Site, the Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of SEPA’s actual or alleged intellectual property rights (an “Excluded Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it.  Our notice to you will be sent to you based on the most recent contact information that you provide us.  But if no such information exists or if such information is not current, then we have no obligation under this Section 8.A.  Your notice to us must be sent to: SEPA, 1220 19th Street, NW, Suite 800, Washington DC 20036 (Attention: Department of Operations).  For a period of sixty (60) days from the date of receipt of notice from the other party, SEPA and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or SEPA to resolve the Dispute or Excluded Dispute on terms with respect to which you and SEPA, in each of our sole discretion, are not comfortable.

B.                 Binding Arbitration.  If we cannot resolve a Dispute as set forth in Section 8.A (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND SEPA (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT – INCLUDING, BUT NOT LIMITED TO FRAUD, ANY OTHER INTENTIONAL TORT, OR NEGLIGENCE – COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION.  THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT, SERVICE OR ADVERTISING CONNECTED TO THE PROVISION OR USE OF THE SERVICE.  The Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between SEPA and you regarding these Terms (and any Additional Terms) and the Service.  SEPA and you agree, however, that the District of Columbia or federal law shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and SEPA regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to the District of Columbia’s choice of law principles that might apply other states’ laws.

Disputes will be resolved solely by binding arbitration in accordance with the then-current commercial Arbitration Rules of the American Arbitration Association (“AAA”).  If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of SEPA consent to in writing.  If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration.  You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require SEPA to pay a greater portion or all of such fees and costs in order for this Section 8 to be enforceable, thenSEPA will have the right to elect to pay the fees and costs and proceed to arbitration.  The arbitrator will apply applicable law and the provisions of these Terms and any Additional Terms, will be bound by these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim.  All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide.  This arbitration provision shall survive termination of these Terms or the Service.

C.                Limited Time To File Claims.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 8.A) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED. 

D.                Injunctive Relief.  The foregoing provisions of this Section 8 will not apply to any legal action taken by SEPA to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Site, any Content, and/or SEPA’s intellectual property rights (including such SEPA may claim that may be in dispute), SEPA’s operations, and/orSEPA’s products or services.

E.                 No Class Action Matters.  Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party.  YOU AND SEPA 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.  There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought to a purported representative capacity on behalf of the general public, or other persons or entities similarly situated.  But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 8.B to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 8.F.  Notwithstanding any other provision of this Section 8, any and all issues relating to the scope, interpretation and enforceability of this Section 8.E, including the class action waiver provisions contained herein, are to be decided only by a court of competent jurisdiction, and not by the arbitrator.

F.                 Federal and State Courts in the District of Columbia.  Except to the extent that arbitration is required in Section 8.B, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or Federal court in the District of Columbia.  Accordingly, you and SEPA consent to the exclusive personal jurisdiction and venue of such courts for such matters.

Small Claims Matters Are Excluded From Arbitration Requirement.  Notwithstanding the foregoing, either of us may bring qualifying claims or Disputes (but not Excluded Disputes) in small claims court, subject to Section 8.F.

9.                  Disclaimer of Representations and Warranties

YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS.  Therefore, to the fullest extent permissible by law, SEPA and its direct and indirect parents, subsidiaries, affiliates and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “SEPA Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:

(a)     the Service (including the Content and the User-Generated Content);

(b)     the functions, features, or any other elements on, or made accessible through, the Service;

(c)     any products, services, or instructions offered or referenced at or linked through the Service;

(d)    security associated with the transmission of your User-Generated Content transmitted to SEPA or via the Service;

(e)     whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);

(f)     whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;

(g)     whether any defects to or errors on the Service will be repaired or corrected;

(h)     whether your access to the Service will be uninterrupted;

(i)      whether the Service will be available at any particular time or location; and

(j)      whether your use of the Service is lawful in any particular jurisdiction. 

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A SEPA PARTY, THE SEPA PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable, and you may have additional rights. 

10.                  Limitations of Our Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY SEPA PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including loss of profits, that are directly or indirectly related to:

(a)        the Service (including the Content and the User-Generated Content);

(b)        your use of or inability to use the Service, or the performance of the Service;

(c)        any action taken in connection with an investigation by the SEPA Parties or law enforcement authorities regarding your access to or use of the Service;

(d)       any action taken in connection with copyright or other intellectual property owners or other rights owners;

(e)        any errors or omissions in the Service’s technical operation; or

(f)        any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if SEPA Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service). 

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you, and you may have additional rights.

EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE SEPA PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID SEPA IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A COURT OR TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.  FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY SEPA OR A MANUFACTURER OF A PHYSICAL PRODUCT.

11.                  Waiver of Injunctive or Other Equitable Relief

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND.  THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY SEPA (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF SEPA.

12.                  Updates to Terms

These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use).  AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR APPLICABLE ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED.  ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS.  Therefore, you should review the posted Terms and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission).  Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you.  However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use and any specific term to which we previously committed to apply those terms (if applicable) (i.e., changes and additions are prospective only) unless mutually agreed.  In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs.  You should frequently check the home page and any email you have supplied to us, all of which you agree are reasonable manners of providing you notice.  You can reject any new, revised or additional terms by discontinuing use of the Service and related services.   

13.                  General Provisions

A.                SEPA’s Consent or Approval.  As to any provision in these Terms or any Additional Terms that grants SEPA a right of consent or approval, or permits SEPA to exercise a right in its “sole discretion,” SEPA may exercise that right in its sole and absolute discretion.  No SEPA consent or approval may be deemed to have been granted by SEPA without being in writing and signed by an officer of SEPA.  

B.                 Applicable Law.  These Terms and any applicable Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the District of Columbia, without regard to its conflicts of law provisions that might apply the laws of another jurisdiction.

C.                Indemnity.  You agree to defend, indemnify, and hold the SEPA Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any SEPA Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content; (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any applicable Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) the SEPA Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”).  You will cooperate as fully required by the SEPA Parties in the defense of any Claim and Losses.  Notwithstanding the foregoing, the SEPA Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. The SEPA Parties reserve the right to assume the exclusive defense and control of any Claims and Losses.  You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a SEPA Party.

D.                Operation of Service; Availability of Products and Services; International Issues.  SEPA controls and operates the Service from the U.S.A., and SEPA makes no representation that the Service is appropriate or available for use beyond the U.S.A.  If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.  The Service may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide.  We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide.  You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service.

E.                 Export Controls.  Software related to or made available by the Service may be subject to export controls of the U.S.A.  To the extent permissible under applicable domestic laws, no software from the Service may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoes, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses).  You are responsible for complying with all applicable trade regulations and laws both foreign and domestic.  Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions, including, as set forth in subsections (i) – (iii) above.

F.                 Severability; Interpretation.  If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms (which will remain in full force and effect).  To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.  Wherever the word “including” is used in these Terms or any applicable Additional Terms, the word will be deemed to mean “including, without limitation.”  The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.

G.                Communications.  When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically.  We will try to promptly respond to all inquiries, but we are not obligated to do so.  You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

H.                Investigations; Cooperation with Law Enforcement; Termination; Survival.  SEPA reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any applicable Additional Terms, (iii) investigate any information obtained by SEPA in accordance with its Privacy Policy in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any applicable Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any applicable Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party.   Any suspension or termination will not affect your obligations to SEPA under these Terms or any applicable Additional Terms.  Upon suspension or termination of your access to the Service, or upon notice from SEPA, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service.  The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to SEPA in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

I.                   Assignment.  SEPA may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice.  These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of SEPA.

J.                  Complete Agreement; No Waiver.  These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service.  Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or SEPA in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.

K.                U.S. Government Restricted Rights.  If you are a U.S. government end user, then this provision applies to you.  The Service provided in connection with these Terms has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227-7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer site” and/or “commercial computer site documentation.”  Consistent with DFARS section 227.7202 and FAR section 12.212 and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms and shall be prohibited except to the extent expressly permitted by these Terms.

L.                 Connectivity.  You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.

M.               California Consumer Rights and Notices

Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254.  Their website is located at: http://www.dca.ca.gov.

N.               Not a Consumer Reporting Agency

SEPA is not a consumer-reporting agency ("Consumer Reporting Agency") as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA") and the Service and any reports provided by the Service do not constitute "consumer reports," "consumer credit information," or "consumer report information" as those terms are defined in the FCRA. The information provided by the Service does not bear on any consumer's creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living. SEPA has not collected or used the Content or other information on the Service, and does not offer or provide the Content or the Service, in whole or in part, for the purpose of serving as a factor in establishing any consumer's eligibility for (A) credit or insurance to be used primarily for personal, family, or household purposes; (B) employment purposes; or (C) any other purpose authorized under section 1681b of FCRA. SEPA does not regularly engage in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties; SEPA does not prepare or furnish consumer reports as defined under FCRA; and SEPA does not expect the information on the Service to be used for any consumer purpose. You agree that you will not collect, use or provide the Content or the Service, in whole or in part:

  • In connection with establishing a consumer's eligibility for credit or insurance to be used primarily for personal, family or household purposes or in connection with assessing risks associated with existing credit obligations of a consumer.
  • For employment purposes, including without limitation for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee;
  • For any tenancy verification or in connection with any application to rent real property;
  • In connection with a determination of a consumer's eligibility for a license or other benefit that depends on an applicant's financial responsibility or status;
  • As a potential investor or servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation;
  • In connection with any information, service or product sold or delivered to a "Consumer" (as that term is defined in the FCRA) that constitutes or is derived in substantial part from a consumer report;
  • For the preparation of a consumer report or in such a manner that may cause such data to be characterized as a consumer report;
  • For any other purpose authorized under section 1681b of FCRA.

You agree that you do not and will not engage in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, that you do not prepare or furnish consumer reports as defined under FCRA, and that you do not expect the information on or provided by the Service to be used for any consumer purpose. You agree not to take any "adverse action" (as that term is defined in the FCRA), which is based in whole or in part on the Service, against any Consumer.

 

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