Effective Date: 5/30/16
Last Updated Date: 5/31/16
However, these Terms will not apply when you license any Videos to Clear Digital Media; any such license and relationship will be covered in a separate agreement between you and Clear Digital Media and any Videos or related material that you license to Clear Digital Media will not be considered Your Content under these Terms.
- Use of the Services and Clear Digital Media Materials.
The information and content available on the Website and in the Services (as these terms are defined below), other than Videos (collectively, the ” Clear Digital Media Materials“) and the Videos are protected by copyright laws throughout the world. Subject to these Terms, Clear Digital Media grants you a limited license to reproduce portions of the Clear Digital Media Materials for the sole purpose of using the Services for your personal or non-commercial purposes. Unless otherwise specified by Clear Digital Media in a separate license, your right to use any Clear Digital Media Materials or Videos that you access or download through the Website or the Services is subject to the Terms. Any use of the Videos will be governed by the Supplemental Terms in the Royalty Free License Agreement.
Updates. You understand that the Website and the Services are evolving. As a result, Clear Digital Media may require you to accept updates to the Website or the Services that you have installed on your computer or mobile device. You acknowledge and agree that Clear Digital Media may update the Website, and/or the Services with or without notifying you. You may need to update third party software from time to time in order to receive the Services or use the Website.
Certain Restrictions. Except to the extent expressly permitted in any Supplemental Terms, the rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website or any portion of the Website, including any Clear Digital Media Materials, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Clear Digital Media Materials (including images, text, page layout or form) of Clear Digital Media; (c) you shall not use any metatags or other “hidden text” using Clear Digital Media’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Clear Digital Media Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Website; (f) access the Clear Digital Media Materials in order to build a similar or competitive website or service; (g) except as expressly stated herein, no part of the Clear Digital Media Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Clear Digital Media Materials. Any future release, update or other addition to the Clear Digital Media Materials shall be subject to these Terms. Clear Digital Media, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Website or the Services terminates the licenses granted by Clear Digital Media pursuant to the Terms.
Third Party Materials. As a part of the Clear Digital Media Materials, you may have access to materials that are hosted by another party. You agree that it is impossible for Clear Digital Media to monitor such materials and that you access these materials at your own risk.
- Registration. (We Might want to replace this with Purchase Data or something)
Registering your Account. In order to access certain features of the Website, and the Services you may be required to become a Registered User. For purposes of these Terms, a “Registered User” is a User who has registered an account on the Website (“Account“).
Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data“); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least eighteen (18) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Clear Digital Media Materials or the Services by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Clear Digital Media has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Clear Digital Media has the right to suspend or terminate your Account and refuse any and all current or future use of the Clear Digital Media Materials and/or the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Clear Digital Media reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Clear Digital Media Materials and/or the Services if you have been previously removed by Clear Digital Media, or if you have been previously banned from the Services.
Activities. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Clear Digital Media immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Clear Digital Media Materials and the Services, including but not limited to, a mobile device that is suitable to connect with and use the Clear Digital Media Materials and the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Clear Digital Media Materials and the Services.
- Responsibility for Content.
Storage. Unless expressly agreed to by Clear Digital Media in writing elsewhere, Clear Digital Media has no obligation to store any of Your Content that you Make Available on the Website or via the Services. Clear Digital Media has no responsibility or liability for the deletion or accuracy of any Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. You agree that Clear Digital Media retains the right to create reasonable limits on Clear Digital Media’s use and storage of the Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Clear Digital Media in its sole discretion.
Clear Digital Media Materials. You agree that Clear Digital Media and its suppliers own all rights, title, and interest in the Website, the Services, the Videos and the Clear Digital Media Materials. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Clear Digital Media Materials.
Trademarks. Clear Digital Media and other related graphics, logos, service marks, and trade names used on the Website, in the Clear Digital Media Materials or in connection with the Services are the trademarks of Clear Digital Media and may not be used without permission in connection with any third party products or services. Other trademarks, service marks and trade names that may appear on the Website, in the Clear Digital Media Materials or in connection with the Services are the property of their respective owners.
- User Conduct.
Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by these Terms and, by incorporation, the Royalty Free License Agreement): Reproduce, duplicate, copy, sell, trade, resell, or exploit for any commercial purpose any portion of the Website, Services (including your Account), Clear Digital Media Materials, or access to or use of the Website, Services, or Clear Digital Media Materials; Upload, post, e-mail, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; Use the Website, Services, or Footage Clear Digital Media Materials or any part thereof for any commercial purpose, including, but not limited to communicating or facilitating any commercial advertisement or solicitation; Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); or Market any goods or services for any business purposes.
Unauthorized Use or Access. You agree that you will not, under any circumstances: Interfere or attempt to interfere with the proper functioning of the Website, Services, or Clear Digital Media Materials or connect to or use the Website, Services, or Clear Digital Media Materials in any way not expressly permitted by the Terms; Systematically retrieve data or other content from our Website, Services, or Clear Digital Media Materials to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory, or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise; Use, display, mirror, or frame the Website, Services, or Clear Digital Media Materials, or any individual element within the Website, Services, or Clear Digital Media Materials, Clear Digital Media’s name, any Clear Digital Media trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Clear Digital Media’s express written consent.
General. In connection with your use of the Website, Services, and Clear Digital Media Materials, you shall not, except as expressly permitted in the Terms:
Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically, or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities; Harm minors in any way;
Impersonate any person or entity, including, but not limited to, Clear Digital Media personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
Register for more than one Account or register for an Account on behalf of an individual other than yourself; Stalk or otherwise harass any other user of our Website, Services or Clear Digital Media Materials; or Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
If Clear Digital Media becomes aware of any possible violations by you of any provision of the Terms, Clear Digital Media reserves the right to investigate such violations, and Clear Digital Media may, at its sole discretion, immediately terminate your license to use the Website, Services, or Clear Digital Media Materials.
- Fees and Purchase Terms.
Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide Clear Digital Media with valid credit card (Visa, MasterCard, or any other issuer accepted by us) or other payment account that we accept (“Payment Provider“), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or other payment account, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Clear Digital Media with your credit card number or other payment account and associated payment information, you agree that Clear Digital Media is authorized to immediately invoice your Account for all fees and charges due and payable to Clear Digital Media hereunder and that no additional notice or consent is required. You agree to immediately notify Clear Digital Media of any change in your billing address or the credit card or other payment account used for payment hereunder. Clear Digital Media reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you.
Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee“) at the time you create your Account and select your annual package (each, a “Service Commencement Date“). Except as set forth in these Terms, all fees for the Services are non-refundable. No contract will exist between you and Clear Digital Media for the Services until Clear Digital Media accepts your order by a confirmatory e-mail or other appropriate means of communication.
Taxes. Clear Digital Media’s fees are net of any applicable Sales Tax. If any Services, or payments for any goods or services, under this Agreement are subject to Sales Tax in any jurisdiction, you will be responsible for payment of such Sales Tax, and any related penalties or interest and will indemnify Clear Digital Media for any liability or expense Clear Digital Media may incur in connection with such Sales Taxes. For purposes of this Agreement, “Sales Tax” shall mean any sales tax, use tax, value-added tax, duty, and any other tax measured by sales proceeds, that Clear Digital Media is permitted to pass to you that is (a) the functional equivalent of a sales tax and (b) the applicable taxiing jurisdiction does not otherwise impose a sales or use tax. Clear Digital Media may automatically charge and withhold such taxes for orders to be delivered to addresses within any jurisdictions that it deems is required. The country you indicate for subscription shall be considered your country of residence for tax purposes. If you reside in a jurisdiction where the responsibility to collect and assess taxes lies with the recipient of the service, you will appropriately self-assess for such taxes and meet all associated compliance responsibilities.
You agree to indemnify and hold Clear Digital Media Parties harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your use of, or inability to use, the Website or the Services; (b) your violation of the Terms; (c) your violation of any rights of another party, or (d) your violation of any applicable laws, rules, or regulations. Clear Digital Media reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Clear Digital Media in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account or the Services.
- Disclaimer of Warranties.
AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEBSITE AND THE SERVICES IS AT YOUR SOLE RISK, AND THE WEBSITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CLEAR DIGITAL MEDIA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
THE CLEAR DIGITAL MEDIA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITE OR SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE WEBSITE OR THE SERVICES WILL BE CORRECTED.
ANY CONTENT OR CLEAR DIGITAL MEDIA MATERIALS PURCHASED FROM OR OTHERWISE ACCESSED THROUGH THE WEBSITE OR THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WEBSITE OR THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. CLEAR DIGITAL MEDIA MAKES NO WARRANTY, REPRESENTATION, OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION, AND OTHER CHARACTERISTICS OF SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CLEAR DIGITAL MEDIA OR THROUGH THE WEBSITE OR THE CLEAR DIGITAL MEDIA MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
From time to time, Clear Digital Media may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Clear Digital Media’s sole discretion. The provisions of this section apply with full force to such features or tools.
NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE CLEAR DIGITAL MEDIA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE CLEAR DIGITAL MEDIA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. CLEAR DIGITAL MEDIA MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. CLEAR DIGITAL MEDIA MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE WEBSITE OR THE SERVICES.
- Limitation of Liability.
DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE CLEAR DIGITAL MEDIA PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE , THE SERVICES OR THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT CLEAR DIGITAL MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE WEBSITE OR THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE WEBSITE OR THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE OR THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE OR THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE WEBSITE OR THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY.
CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE CLEAR DIGITAL MEDIA PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY CLEAR DIGITAL MEDIA AS A RESULT OF YOUR USE OF THE WEBSITE AND THE SERVICES.
CONTENT. THE CLEAR DIGITAL MEDIA PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
Information Verification. Clear Digital Media Parties may use various ways of verifying information that Users have provided. However, none of those ways are perfect, and you agree that Clear Digital Media and its suppliers will have no liability to you arising from any incorrectly verified information.
BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLEAR DIGITAL MEDIA AND YOU EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Term and Termination.
Term. These Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Website or any Services, unless terminated earlier in accordance with these Terms.
Prior Use. Notwithstanding the foregoing, if you used the Website or any Services prior to the date you accepted these Terms, you hereby acknowledge and agree that these Terms commenced on the date you first used the Website or the Services (whichever is earlier) and will remain in full force and effect while you use the Website or any other Services, unless earlier terminated in accordance with these terms.
Termination of Services by Clear Digital Media. Clear Digital Media has the right to modify, suspend, or terminate any Services provided to you at any time with or without reason. You agree that all terminations for cause shall be made in Clear Digital Media’s sole discretion.
Violations. If Clear Digital Media becomes aware of any possible violations by you of the Terms, Clear Digital Media reserves the right to investigate such violations. If, as a result of the investigation, Clear Digital Media believes that criminal activity has occurred, Clear Digital Media reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Clear Digital Media is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Website or in the Services in Clear Digital Media’s possession in connection with your use of the Website or the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to your requests for customer service; or (4) protect the rights, property or personal safety of Clear Digital Media, its Users or the public, and all enforcement or other government officials, as Clear Digital Media in its sole discretion believes to be necessary or appropriate.
Breach. In the event that Clear Digital Media determines, in its sole discretion, that you have breached any portion of these Terms, or have otherwise demonstrated conduct inappropriate for the Website or the Services, Clear Digital Media reserves the right to:
Warn you via e-mail (to any e-mail address you have provided to Clear Digital Media) that you have violated these Terms;
Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
Pursue any other action which Clear Digital Media deems to be appropriate.
No Subsequent Registration. If your registration(s) with or ability to access the Website or the Services, or any other Clear Digital Media community is discontinued by Clear Digital Media due to your violation of any portion of these Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Website, the Services or any other Clear Digital Media community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those materials or Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Clear Digital Media reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
- International Users.
This Website can be accessed from countries around the world and may contain references to services and Content that are not available in your country. These references do not imply that Clear Digital Media intends to announce such services or Content in your country. The Website and Services are controlled and offered by Clear Digital Media from its facilities in the United States of America. Clear Digital Media makes no representations that the Website or the Services are appropriate or available for use in other locations. Those who access or use the Website or the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
- General Provisions.
Electronic Communications. The communications between you and Clear Digital Media use electronic means, whether you visit the Website or send Clear Digital Media e-mails, or whether Clear Digital Media posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Clear Digital Media in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Clear Digital Media provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Release. You hereby release the Clear Digital Media Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Users or third party websites of any kind arising in connection with or as a result of your these Terms or your use of the Website or the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Clear Digital Media’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Clear Digital Media shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil, or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
Dispute Resolution. If you believe that Clear Digital Media has not adhered to these Terms, please contact Clear Digital Media by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
Choice of Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Texas, without giving effect to any conflict of laws principles that require the application of the law of a different state, consistent with the Federal Arbitration Act. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Limitations Period. YOU AND CLEAR DIGITAL MEDIA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE WEBSITE, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
ARBITRATION. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with Clear Digital Media and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes in connection with these Terms or the use of any product or service provided by Clear Digital Media that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Clear Digital Media, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms.
- Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with these Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in Washington, D.C., unless the parties agree otherwise). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Clear Digital Media, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and these Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Clear Digital Media.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Clear Digital Media in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND CLEAR DIGITAL MEDIA WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CONTRIBUTOR CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CONTRIBUTOR. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Hays County, Texas.
- No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Clear Digital Media.
- Small Claims Court. Notwithstanding the foregoing, either you or Clear Digital Media may bring an individual action in small claims court.
- In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Hays County, Texas, for such purpose.
Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English. C’est law expresse des parties presente convention que les documents qui rattacent rediges en anglais.
Notice. Where Clear Digital Media requires that you provide an e-mail address, you are responsible for providing Clear Digital Media with your most current e-mail address. In the event that the last e-mail address you provided to Clear Digital Media is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, Clear Digital Media’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Clear Digital Media at the following address: Clear Digital Media, 1900 Avenida High View, Driftwood, TX 78619 USA. Such notice shall be deemed given when received by Clear Digital Media by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. Unless otherwise stated in this agreement, if any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law, unless otherwise stated in these Terms.
Export Control. You may not use, export, import, or transfer the Clear Digital Media Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Clear Digital Media Materials, and any other applicable laws. In particular, but without limitation, the Clear Digital Media Materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Clear Digital Media Materials, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Clear Digital Media Materials for any purpose prohibited by U.S. law, including the development, design, manufacture, or production of missiles, nuclear, chemical, or biological weapons. You acknowledge and agree that products, services, or technology provided by Clear Digital Media are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Clear Digital Media products, services or technology, either directly, or indirectly, to any country in violation of such laws and regulations.
Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.