TERMS AND CONDITIONS
1. Introduction and Overview.
In some instances, both these Terms and separate terms elsewhere on the Service will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
NOTE: THIS AGREEMENT IS SUBJECT TO A WAIVER OF CLASS ACTION RIGHTS, AS DETAILED IN SECTION 8. Except as provided in Section 8, providing for binding arbitration and waiver of class action rights, LATINX21 reserves the right, at its sole discretion, to modify or replace the Terms at any time as detailed in Section 13.
2. Service Use.
The Service contains: (i) materials and other items relating to LATINX21 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, instructions, illustrations, photographs, 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; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of LATINX21; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Service and the Content is the property of LATINX21 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.
B. Limited License.
Subject to your strict compliance with these Terms and any applicable Additional Terms, LATINX21 grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, and play the Content on a personal computer, browser, laptop, tablet, mobile phone, or other internet-enabled device (each, a “Device”), in each case for your personal, non-commercial use only. 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 suspended or terminated for any reason, in LATINX21’s sole discretion, and without advance notice or liability. Your unauthorized use of the 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.
Certain features of the Service may require you to register an account with LATINX21. When registering an account, you agree to: (i) protect and prevent unauthorized access to your account; (ii) not transfer or share your account with any third party; and (iii) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. Please note that you are solely responsible for all activities that occur under your account, whether or not you authorized the activity, and we are not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
You may not use the Service unless you are at least sixteen (16) years old.
Unless we expressly authorize you to do so in writing, you shall not:
– Copy or download any Content or aspect of the Service (other than UGC pursuant to the express licensing terms applicable thereto);
– Reproduce, distribute, publicly perform or display, lease, sell, transmit, transfer, publish, edit, copy, create derivative works from, rent, sub-license, distribute, decompile, disassemble, reverse engineer or otherwise make unauthorized use of the Content or the Service except as explicitly authorized under these Terms
– Make any commercial, i.e., for-profit, use of the Content;
– Harvest information from the Service;
– Reverse engineer or modify the Service;
– Frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) owned or licensed by LATINX21;
– Interfere with the proper operation of or any security measures used by the Service or in relation to the Content;
– Infringe on any intellectual property or other right of any third party;
– Use the Service or Content in a manner that suggests an unauthorized association or that is beyond the scope of the limited license granted to you herein; or
– Remove, obscure, or alter copyright, patent, trademark, or other proprietary rights notices affixed to any Content or third-party UGC.
All rights not expressly granted to you in these Terms are reserved and retained by LATINX21 or its licensors. You may use the Services only as permitted by law. The licenses granted by LATINX21 terminate if you do not comply with these Terms.
Any material or content other than your UGC is the property of the relevant party who made such material or content available, and is or may be subject to copyright, trademark rights or other intellectual property or proprietary rights. Another user’s material or content may not be downloaded, reproduced, distributed, transmitted, re-uploaded, republished, displayed, sold, licensed, made available or otherwise communicated to the public or exploited for any purposes except via the features of the Services from time to time and within the scope of license set by the owner of such UGC on the Service. If you repost, share, or link to another user’s UGC, you acquire no ownership rights whatsoever in that Content. Subject to the rights expressly granted in this Section 2, all rights in Content are reserved to the relevant owner.
E. Availability, Suspension, and Termination.
LATINX21 may suspend or terminate the availability of the Service and Content, in whole or in part, to any individual user or all users, for any reason, in LATINX21’s sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from LATINX21, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service and Content.
i. Repeat Infringers
We reserve the right to suspend or terminate your access to the Service if we determine, in our sole discretion, that you have repeatedly breached these Terms. If we receive a valid notification from a third party in accordance with our DMCA reporting procedure or applicable law that any of your UGC infringes the copyright or other rights of a third party, we will send you a written warning to this effect. We reserve the right to suspend or terminate your access to the Services if you receive more than two of these warnings.
We will also suspend or terminate your Account without warning if ordered to do so by a court of competent jurisdiction, and/or in other appropriate circumstances, as determined by LATINX21 in our discretion.
ii. Other Grounds for Termination
In addition to the suspension or termination of repeat infringers, we may suspend your access to the Service and/or terminate your Account at any time if: (1) you are in breach of any of the material provision of these Terms; (2) we elect, at our discretion, to cease providing access to the Service in the jurisdiction where you reside or from where you are attempting to access the Service; or (3) in other reasonable circumstances as determined by LATINX21 in our discretion.
You may terminate your obligations under this agreement at any time by sending a notice in writing to LATINX21, removing all of your UGC from your Account, deleting your Account, and thereafter ceasing all use of the Service.
Once your Account has been terminated, any and all UGC residing in your account, or pertaining to activity from your account (for example, data relating to the distribution or consumption of your UGC), will be deleted, except to the extent that we are obliged or permitted to retain such content, data or information for a certain period of time in accordance with applicable laws and regulations and/or to protect our legitimate business interests. You are advised to save or back up any material that you have uploaded to your Account before terminating your Account, as LATINX21 assumes no liability for any material that is deleted following any termination of your Account.
F. Reservation of Rights.
All rights not expressly granted to you are reserved by LATINX21 and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Service for any purpose is prohibited.
3. User Generated Content and Submissions.
A. User Generated Content
The Service permits you to create and/or make available via the Service material which you own, have created or otherwise have appropriate rights in (which we refer to as “User Generated Content” o “UGC”). UGC includes, for example, music, audio recordings, images, pictures, writings, video, and any other content or materials contributed by users to, on, or through the Services. In order to distribute UGC through the Service, you must first register an Account with LATINX21. You are solely responsible for your UGC and the consequences of posting or publishing UGC through the Service.
By posting or publishing UGC on or through the Service, you affirm, represent, and warrant that:
– You are the creator of or otherwise own the rights in the UGC that you make available to or through the Services, or, for any UGC that is owned by a third party, you have the express authorization of such third party to make such UGC available through the Service;
– No element of UGC, nor the exploitation of such UGC through the Service, or by us on any other platform or social media platform (e.g., including YouTube, Instagram, Facebook, Tik Tok, etc.) infringes the intellectual property rights or privacy or any other rights of anyone else or is illegal or breaches the Terms;
– You waive and agree not to assert any moral rights or similar rights you may have in UGC;
– To the extent you are the songwriter of any or all of the musical works embodied in your UGC, whether in whole or in part (e.g. as a co-writer), you have the full right, power, and authority to grant the rights set forth in these Terms notwithstanding the provisions of any agreement you may have entered into with any performing rights organization, whether based in the United States (e.g. ASCAP, BMI etc.) or elsewhere, or any music publisher, and that you will take all necessary steps to inform such organization or music publisher of your grant of a royalty-free license to LATINX21 for the public performance and communications to the public of the musical works embodied in your UGC, and that no fees or payments of any kind whatsoever shall be due to any such organization or music publisher for the public performance or communication to the public of your UGC;
– No fees of any kind shall be due to any third party including, without limitation, any union, guild, non-featured vocal artists or musician, engineer or production staff, for the exploitation of your UGC;
– You are solely responsible for your UGC, and acknowledge that LATINX21 does not pre-screen any UGC and does not endorse or approve of any UGC that you or other users may contribute to the Services;
– You shall not in any way claim or suggest that any UGC is endorsed or supported by LATINX21; and
– Your use of the Service or Content, including your UGC, complies with all applicable laws and legislation and is not harmful, offensive, defamatory, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, illegal or likely to cause any reputational loss or embarrassment to LATINX21 or its affiliates.
Your use of the Service, including the creation, download, or use of UGC is at your own risk. We are under no obligation to edit or control UGC that you or other users post or publish, and will not be in any way responsible or liable for UGC. You understand that when using the Services you will be exposed to UGC from a variety of sources and acknowledge that UGC may be inaccurate, offensive, indecent or objectionable. You agree to waive, and do hereby waive, any legal or equitable rights or remedies you have or may have against LATINX21 with respect to UGC. We expressly disclaim any and all liability in connection with UGC.
Nevertheless, if LATINX21 believes that your UGC breaches any of the terms and conditions set forth herein, then we may remove, block, edit, move or disable such UGC, in our sole discretion, and to take any other steps which we consider appropriate including termination of your Account. If notified by a user or content owner that UGC allegedly does not conform to the Terms herein, we may investigate the allegation and determine, in our sole discretion, whether to remove the UGC, which we reserve the right to do at any time and without notice. For clarity, LATINX21 does not permit copyright-infringement activities on the Service.
B. Your License Grant to Your User Generated Content.
By making UGC available through the Service, you are allowing us to transcode any audio or video content within the UGC and are directing us to store your UGC as we choose, from where we may control and authorize the use, ways of reproduction, transmission, distribution, public display, public performance, making available and other communication to the public of your UGC via the Service. To the extent it is necessary in order for us to provide you and/or other users with access to the Service, including the aforementioned hosting services, to undertake any of the tasks set forth in these Terms, including the distribution of advertising or other promotional material on our Service and/or to enable your use of the Service, you hereby grant a license to LATINX21 to do so on a limited, worldwide, non-exclusive, royalty-free and fully-paid basis.
By making UGC available through the Service, you also grant a limited, worldwide, non-exclusive, royalty-free, fully-paid, license to other users of the Service, and to operators and users of any other websites, apps and/or platforms to which UGC has been shared or embedded using the Services (“Linked Services”), to use, copy, transmit or otherwise distribute, publicly display, publicly perform, adapt, prepare derivative works of, compile, make available and otherwise communicate to the public, your UGC utilizing the features of the Service from time to time, and within the parameters set by you using the Service.
Notwithstanding the foregoing, nothing in these Terms grants any rights to any other user of the Service with respect to any proprietary name, logo, trademark or service mark uploaded by you as part of your UGC (for example, your artist picture) (together “Marks”), other than the right to reproduce, publicly display, make available and otherwise communicate to the public those Marks, automatically and without alteration, as part of the act of sharing UGC with which you have associated those Marks.
The licenses granted in this section are granted separately with respect to each item of UGC that you make available through the Service. Licenses with respect to video or audio UGC, and any images or text within your account, will (subject to the Terms herein) terminate automatically when you remove such UGC from your Account,
Removal of video or audio UGC from your account will automatically result in the removal of the relevant files from our storage. However, notwithstanding the foregoing, you hereby acknowledge and agree that once your UGC is distributed to a Linked Service, we are not obligated to ensure the deletion of your UGC from any servers or systems operated by the operators of any Linked Service, or to require that any user of the Service or any Linked Service deletes any item of your UGC.
C. Feedback and User Submissions to LATINX21
When you submit any ideas, feedback, opinions, techniques, images, sounds, videos, or other content to us through or relating to the Service (“Submissions”), you grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to host, store, use, display, reproduce, modify, adapt, edit, combine with other materials, publish, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including, without limitation, to third party media channels, platforms, social media platforms (e.g., including YouTube, Instagram, Facebook, Tik Tok, etc.), and distributors), publicly perform, publicly display, and otherwise use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Submissions, 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. You further irrevocably grant us the right, but not the obligation, to use your name in connection with your Submissions. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions, 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 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. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Submissions. You waive any and all rights and claims in connection with our consideration, use, or development of any product, content, or other materials similar or identical to your Submission now or in the future.
You represent and warrant that you own or have the necessary rights, licenses, consents, and permissions to grant us the rights granted in this Section. You alone, though, retain whatever legally cognizable right, title, and interest that you have in your Submission and remain responsible for them.
4. Copyright Infringement.
A. DMCA Notification.
LATINX21 responds to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). To submit a notice of claimed copyright infringement under U.S. law, provide our designated agent with the following written information:
· A physical or electronic signature of the copyright owner or a person authorized to act on his or her behalf;
· Identification of the copyrighted work claimed to have been infringed;
· Identification of the infringing material and information reasonably sufficient to permit us to locate that material;
· Your contact information, including your address, telephone number, and an e-mail address;
· A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law; and
· A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated agent is:
5900 Wilshire #2600
Los Angeles, CA 90036
You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.
We will respond to notifications of claimed copyright infringement in accordance with the DMCA.
B. Counter Notification.
If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information:
· A physical or electronic signature;
· Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
· A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
· Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which LATINX21 may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
We will respond to counter notifications in accordance with the DMCA.
5. Customer Support.
If you have any questions or comments, please send an e-mail to us here. You acknowledge that the provision of support is at LATINX21’s sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: Latinx21, LLC, 5900 Wilshire Blvd., Suite 2600, Los Angeles, CA 90036. When you communicate with us electronically, you consent to receive communications from us electronically. 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.
6. Third Party Services.
7. Service Features.
A. Wireless Features.
B. Location-Based Features.
You can opt-out of receiving certain promotional e-mails from us at any time by following the instructions as provided in e-mails to click on the unsubscribe link, or contacting us here with the word UNSUBSCRIBE in the subject field of the e-mail. Your opt-out will not affect non-promotional e-mails, such as those about your account, transactions, servicing, or LATINX21’s ongoing business relations.
Please note that any opt-out by you is limited to the e-mail address used and will not affect subsequent subscriptions.
8. Agreement to Arbitrate Disputes and Choice of Law.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. We Both Agree to Arbitrate.
You and LATINX21 agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent you have in any manner violated or threatened to violate LATINX21’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances LATINX21 may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described herein.
B. What is Arbitration.
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
C. Arbitration Procedures.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or LATINX21 must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.
(3) Send one copy of the demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to California is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held in the United States in Los Angeles, CA under California law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
D. Authority of Arbitrator.
The arbitrator will decide the rights and liabilities, if any, of you and LATINX21, 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 the 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 LATINX21.
E. Waiver of Class Actions.
You waive any right to pursue an action on a class-wide basis against us and may only resolve disputes with us on an individual basis, and may not bring a claim against us as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
F. 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. 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 LATINX21 in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND LATINX21 WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
G. Choice of Law/Forum Selection.
In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in Los Angeles, CA.
9. Disclaimer of Representations and Warranties.
THE SERVICE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. NEITHER LATINX21 NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “LATINX21 PARTIES”) MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM LATINX21 INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
10. Limitations of Our Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE LATINX21 PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION, UNAUTHORIZED ACCESS, OR LOSS OF PROFITS, DATA, UGC, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE, (B) THESE TERMS (C) YOUR MISUSE OF THE SERVICE, UGC, OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE, OR (D) ANY ACTION TAKEN AGAINST YOU BY THIRD PARTY RIGHTSHOLDERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF SUCH THIRD PARTY’S RIGHTS RELATING TO YOUR UGC. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM LATINX21 INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
You agree to defend, indemnify and hold harmless the LATINX21 Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your UGC or Submissions; (iii) your misuse of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a Third Party Service; or (vii) any misrepresentation made by you. LATINX21 reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with LATINX21’s defense of any claim. You will not in any event settle any claim without the prior written consent of LATINX21.
This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Service.
12. Waiver of Injunctive or other Equitable Relief.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, UGC, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY LATINX21 OR A LICENSOR OF LATINX21.
13. Updates to Terms.
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. If you object to any such changes, your sole recourse is to cease using the Service.
14. General Provisions.
A. Consent or Approval.
No LATINX21 consent or approval may be deemed to have been granted by LATINX21 without being in writing and signed by an officer of LATINX21.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including sections on Service Use (except for the limited license), User Generated Content and Submissions, Copyright Infringement, Customer Support, Third Party Services, Service Features, Agreement to Arbitrate Disputes and Choice of Law, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, Waiver of Injunctive or Other Equitable Relief, Updates to Terms, and General Provisions, will survive.
C. Severability; Interpretation; Assignment.
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, 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 Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. LATINX21 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 LATINX21.
D. 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 LATINX21 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.
E. International Issues.
LATINX21 controls and operates the Service from the U.S., and LATINX21 makes no representation that the Service is appropriate or available for use beyond the U.S. 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. Software related to or made available by the Service may be subject to export controls of the U.S., and, 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.
F. Investigations; Cooperation with Law Enforcement.
LATINX21 reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. LATINX21 may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
G. 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: 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.
If you have any questions about the Terms, contact us at:
5670 Wilshire Blvd., 18th Floor
Los Angeles, CA 90036