Last updated and effective as of August 6, 2019.
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
These Terms are a legal agreement between Ty Herndon, CMEG. (collectively, the “Parties”), and you. These Terms contain important information regarding your legal rights, remedies and obligations. Except as set forth in the Arbitration and Class Action Waiver section below, by accessing any portion of the Sites or using the Services, you, your heirs, assigns, and successors (collectively “you”) acknowledge that you have read and understand these Terms, and you agree to be bound by these Terms. If you do not agree to these Terms, you may not access, browse or otherwise use any portion of the Services, and you must discontinue all use of the Services immediately.
To use the Services, you must be, and represent and warrant that you are, of legal age (18 years of age or older or otherwise of legal age in your jurisdiction, or, if you have parental consent, 13 years of age) and able to agree to these Terms. If you use the Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity. If CMEG and/or TY HERNDON have previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.
CMEG and/or TY HERNDON partner with other companies to provide or to facilitate some of the Services, including, without limitation, fulfilling product orders, processing payments, administering e-mail announcements, sponsoring and administering promotions, and processing and storing data. These companies may maintain their own terms of service, which are not under the control of either CMEG and/or TY HERNDON.
The Parties and their respective subsidiaries, affiliated or related companies, distributors, vendors, contractors, licensors and/or licensees are the exclusive owners or licensees of all content and materials on the Services (“Site Content”) and of all related intellectual property rights therein, including, without limitation, all copyrights, moral rights, trademark rights and patent rights. The Site Content includes, without limitation, all features, functions, services, software, algorithms, designs, objects, documentation, know-how, code, data, art, graphics, animation, photographs, images, text, music, sound effects, audio and/or audio-visual elements, downloadable materials, look-and-feel, design, layout, organization, presentation, user interface, navigation and stylistic convention of the Services. The Site Content is protected by copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. You acknowledge that the Site Content and Services have been developed, compiled, prepared, revised, selected, and arranged by the Parties and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of the Parties and such others.
The name and trademark TY HERNDON® and any other related logos and trademarks used on this Site (collectively, the “Artist Marks”) are the exclusive property of TY HERNDON and/or Journey On Entertainment. Unauthorized use of any of the Artist Marks or of any word, term, name, symbol or device that is likely to cause confusion or mistake with respect to the user’s connection or association with Ty Herndon, or his approval or sponsorship of the user’s products or services, or that is likely to dilute any of the Artist Marks is strictly prohibited by law. All other trade names, trademarks and service-marks that appear on the Services are the property of their respective owners. You agree to notify the Parties immediately upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights.
You may access, browse and use the Services and the Site Content only for your personal, non-commercial use, on a computer, mobile electronic device or other Internet-compatible device. You do not acquire any ownership interests in any of the Site Content or the Artist Marks by accessing, browsing or otherwise using the Services. You may not copy, reproduce, modify, distribute, transmit, display, perform, publish or otherwise exploit, through any means or media, any of the Site Content or the Artist Marks, except as may be allowed by law.
You acknowledge and agree that you are solely responsible for Your Content. The Parties cannot be responsible for maintaining Your Content, and may remove Your Content from the Services at any time, for any or no reason, and without notice to you. The Parties reserve the right, but do not have an obligation, to monitor and/or review all materials posted to or through the Services, by their users, and we are not responsible for any such materials. CMEG and/or TY HERNDON may, at their sole discretion, proofread, summarize, or otherwise edit and/or withdraw Your Content, and you understand it remains your sole responsibility to monitor Your Content and ensure that such edited content is accurate and consistent with your representations and warranties in these Terms. However, CMEG and/or TY HERNDON further reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, that in our sole discretion are objectionable or in violation of these Terms or applicable law. CMEG and/or TY HERNDON may also impose limits on certain features on the Services or restrict your access to part or all of the features or Services, if either party believes that you are in breach of these Terms or applicable law, or for any other reason, all without notice or liability.
You warrant and agree that, while accessing or using the Services, you will not:
- use another person’s account, impersonate any person or entity, or misrepresent your affiliation with any person or entity, whether actual or fictitious;
- use an inappropriate username or screen name;
- insert your own or a third party’s advertising, marketing or other promotional content into any Site Content, or post, upload, transmit or submit such content as part of Your Content;
- copy, download (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, “mirror,” duplicate, publish, republish, upload, license, reverse engineer, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms or with the prior written consent of CMEG and/or TY HERNDON, as appropriate;
- obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on or through the Services, through any means, including through means not intentionally made publicly-available or provided through the Services;
- scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any API provided or approved by CMEG and/or TY HERNDON, or otherwise engage in any automatic or unauthorized means of accessing, logging-in or registering on the Services, or obtaining lists of users or other information from or through the Services, including, without limitation, any information residing on any server or database connected to the Services;
- use the Services in any manner that could interrupt, damage, disable, overburden or impair the Services or interfere with any other party’s use and enjoyment of the Services, including, without limitation, sending mass unsolicited messages or “flooding” servers;
- post or otherwise make available any material that contains any software, device, instructions, computer code, files, programs and/or other content or feature that is designed to interrupt, destroy, harm, or limit the functionality of any computer software or hardware or telecommunications equipment
- use the Services for benchmarking, or to compile information for a product or service;
- frame, inline link, or similarly display the Services or any portion of the Services;
- use the Services in violation of our or of any of the Parties’ or Related Parties’ intellectual property or other proprietary or legal rights, or of the rights of any third party;
- use the Services in violation of any law;
- attempt (or encourage or support anyone else’s attempt) to circumvent, reverse-engineer, decrypt, or otherwise alter or interfere with, the Services;
- post any trade secrets or other confidential information, or post any material that you do not have a right to make available under any law or under contractual or fiduciary relationships, including but not limited to inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements;
- post, transmit, publish or otherwise disseminate through the Services any of Your Content that, as CMEG and/or TY HERNDON determine, in our sole discretion: (i) is vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, harmful, harassing, inflammatory, threatening, abusive, libelous, defamatory, invasive of another’s privacy, or otherwise unlawful; (ii) is false, misleading, or inaccurate; (iii) promotes sexually explicit or pornographic materials, violence, or any illegal acts; (iv) infringes on our or any third party’s intellectual property or other legal rights, or otherwise violates any law; (v) is derogatory or harmful to our reputation or to the reputation of any of the Parties or Related Parties in any way; (vi) gives the impression that they emanate from or are endorsed by us or any other person or entity, if that is not the case; or (vii) is otherwise inappropriate; or
- attempt to indirectly undertake any of the foregoing.
YOUR ACCOUNT AND YOUR USER INFORMATION
You are solely responsible for maintaining the confidentiality of Your User Information. You are also solely responsible for any and all activities that occur under Your Account or Your User Information. You must notify CMEG immediately, via e-mail to firstname.lastname@example.org, of any suspected or actual unauthorized use of Your Account or Your User Information, and of any and all other security breaches. You understand and agree that CMEG and/or TY HERNDON may require you to provide information that may be used to confirm your identity and help ensure the security of your account.
CMEG and/or TY HERNDON will not be liable for any loss, damages, liability, expenses or lawyers’ fees that you may incur as a result of someone else using Your Account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and lawyers’ fees incurred by CMEG and/or TY HERNDON, or a third party due to someone else using Your Account.
CMEG and/or TY HERNDON each reserve the right to limit, block, suspend, or terminate Your Account in whole or in part or to refuse services to you, without notice to you, at any time and for any or no reason. Without limiting the above, if you are a repeat copyright infringer, CMEG and/or TY HERNDON will, in appropriate circumstances, permanently terminate Your Account and remove all of Your Content from the Services. If appropriate, in their sole discretion, CMEG and/or TY HERNDON may communicate to other users that Your Account has been terminated, blocked, suspended, or terminated, and why this action has been taken. You have the right to terminate Your Account at any time. You may terminate Your Account by following the instructions on the Services. Please note that if Your Account is terminated, CMEG and/or TY HERNDON do not have an obligation to delete or return to you any of Your Content.
If you voluntarily terminate Your Account or allow Your Account to lapse, you may reactivate Your Account at any time through the account interface on the Services. Accounts terminated by us for any type of abuse, including without limitation, a violation of these Terms, may not be reactivated. Certain provisions of these Terms will still apply post termination.
FEES THAT YOU MAY PAY
Some of the Services require you to pay a fee, the details of which are available in various areas of the Services that allow you to purchase products or services. If you choose to join a mobile marketing list, please be aware that there are usually costs associated with receiving SMS or MMS messages, which are determined by your carrier. You should contact your carrier to determine the charges that may apply before you sign up to receive updates via SMS or MMS. If you wish to stop receiving such messages from us, at any time, simply write “STOP” in a reply to any message from CMEG and/or TY HERNDON. You agree to pay all fees and applicable taxes incurred by you or anyone using Your Account or Your User Information.
By submitting an order through the Services, you agree to pay in advance the price of the product(s) or service(s) ordered, plus any applicable taxes, shipping and handling and/or other charges. Payment may be made by credit card or any other method of payment made available to you (each, a “Method of Payment”). In order to make a payment, you must provide valid credit card and/or other billing information and authorize CMEG and/or TY HERNDON (or any third party payment service provider engaged by CMEG and/or TY HERNDON) to charge your Method of Payment for all orders placed and accepted via the Services.
CMEG and/or TY HERNDON may revise the pricing for products and services offered through the Services at any time. Unless otherwise noted, all currency references are in U.S. Dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees for products or services provided by us, Your Account may be closed and Your User Information may be disabled, without warning or notice, at our sole discretion.
EXCEPT AS OTHERWISE SET FORTH IN THE TERMS AND CONDITIONS (IF AND WHEN APPLICABLE), YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE-BASED PRODUCTS OR SERVICES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT OR THROUGH YOUR USER INFORMATION, INCLUDING ANY UNAUTHORIZED CHARGES.
CMEG and/or TY HERNDON may, from time to time, modify, amend or supplement its fees and fee-billing methods, and such changes shall be effective immediately upon posting in these Terms or elsewhere on the Services.
CMEG and/or TY HERNDON reserves the right to refuse or limit any order you place with the webstore. CMEG and/or TY HERNDON may also, in its sole discretion, limit or cancel quantities purchased per person, household, or order. These restrictions may include orders placed by or under the same account, Method of Payment, email address, and/or using the same billing and/or shipping address. CMEG and/or TY HERNDON also reserves the right to limit or prohibit orders that, in its sole judgment, appear to be placed by dealers, resellers or distributors. In the event CMEG and/or TY HERNDON makes a change to or cancel an order, it will attempt to notify you by contacting the email address provided at the time the order was made. If CMEG and/or TY HERNDON cancels all or any part of your order after your Method of Payment has been charged, it will refund the appropriate amount.
SUBMISSION OF YOUR IDEAS AND SUGGESTIONS
While CMEG and/or TY HERNDON encourage you to share ideas and suggestions through the Services, each entity wishes to avoid any potential misunderstandings or disputes that may arise from the limited use that CMEG and/or TY HERNDON or other users of the Services may make of any ideas, feedback, comments, questions, or suggestions that you choose to share (including, without limitation, ideas or suggestions for new creative work, sound recordings, musical compositions or videos) (collectively the “Submissions”), or if the content or business activities of CMEG and/or TY HERNDON seem similar to any such ideas or suggestions. When you share Submissions through the Services, you represent and warrant (a) that you have the right to disclose the Submissions, (b) that the Submissions do not violate the rights of any other person or entity, and (c) that the Submissions do not contain the confidential or proprietary information of any third party or parties. By sharing Submissions, you further agree that CMEG and/or TY HERNDON are under no obligation of confidentiality, express or implied, with respect to the Submissions and grant to CMEG and/or TY HERNDON, to the Parties and to the respective designees a nonexclusive worldwide, fully paid-up, royalty-free, unrestricted, perpetual, irrevocable, and fully transferable, assignable and sub-licensable (through multiple tiers) right and license to copy, reproduce, edit, modify, distribute, stream, broadcast, transmit, display, perform, publish, sell, license, transfer, adapt, create derivative works from, and otherwise use or exploit your Submissions, for any purpose that the Parties and/or their respective designees may choose, in and through any means or media, whether now existing or subsequently developed, and without any compensation to, or any approval by, you or any third party, and you waive and agree to assert any and all author’s rights, “droits morales” and “moral rights.” If you do not wish to grant the foregoing right and license, please do not share, submit or post any Submissions on or through any of the Services. In the interest of clarity, this section shall survive any termination of Your Account or the Services.
LINKS TO THIRD-PARTY WEBSITES
The Services contain links to websites of third parties (including, without limitation, Facebook, Instagram, iTunes, tumblr, Twitter and YouTube). If you use these links, you will leave the Services. These third parties and their websites are not under the Parties’ control. CMEG and/or TY HERNDON do not examine or evaluate these websites and we are not responsible for their content or operation. By providing links to these websites, CMEG and/or TY HERNDON do not approve, warrant or endorse, or otherwise make any representation about, these websites or their owners or operators, and do not assume any related responsibility or liability. You should exercise your own judgment in evaluating and using these websites. When you link to these websites, you become subject to their terms and conditions of use and privacy policies.
LINKING TO THE SITES
You agree that if you include a link from any website to any of the Sites, such link shall open in a new browser window and shall link to the full version of an HTML-formatted page of the Sites. You may not link directly to any Site Content, by, for example and without limitation, “in-line” linking or “deep-linking” methods, or in any manner causing the Sites, or any page of the Sites, to be “framed,” surrounded or obfuscated by any third-party content, materials or branding. CMEG and/or TY HERNDON may, at any time and for any or no reason, require that any link to the Sites be discontinued and removed and may revoke your right to link to the Sites.
DISCLAIMERS AND WARRANTIES
CMEG and/or TY HERNDON administers, controls, and operates the Services from the United States of America. The Services are accessible worldwide; however, some of their features or functions may not be available or appropriate for use outside the United States and/or may not be available to all persons or in all geographic locations. CMEG and/or TY HERNDON make no representation that the Services and Site Content are appropriate or authorized for use in all countries, states, provinces, counties or any jurisdictions outside the United States. Your access and use of the Services may not be legal in your jurisdiction. If you choose to access, browse or use the Services, you do so on your own initiative and at your own risk, and you are responsible for compliance with all applicable laws if, and to the full extent that, such laws and restrictions are applicable. CMEG and/or TY HERNDON reserve the right to limit, in each entity’s sole discretion, as appropriate, the provision of any feature or function of the Services to any person and any geographic area. All Services are void where prohibited.
The Services provide information of a general nature only and you are responsible for determining whether it applies to your specific situation. Each of the Parties and Related Parties specifically disclaim any liability concerning any action that any person may take based on any information or guidance provided on the Services.
Some content on the Services is provided by the users of the Services. With the exception of the license granted to us in these Terms, CMEG and/or TY HERNDON do not obtain or control any rights in, and do not exert editorial control over, such content provided by users. CMEG and/or TY HERNDON also do not independently verify the representations and warranties made by the users with respect to such content. Your access to and use of the Services is at your own risk.
THE SERVICES AND THE SITE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING. WITHOUT LIMITING THE FOREGOING, PARTIES AND THE RELATED PARTIES EXPLICITLY DISCLAIM ANY WARRANTIES WITH RESPECT TO ANY UPTIME OR UNINTERRUPTED ACCESS, THE AVAILABILITY, ACCURACY OR USEFULNESS OF THE SITE CONTENT, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT, ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE, ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THE SERVICES, AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SERVICES. NONE OF THE PARTIES WARRANT THAT THE SERVICES OR THE SITE CONTENT WILL BE TIMELY, SECURE, UNINTERRUPTED, OR OPERATED FREE OF DELAYS IN TRANSMISSION, FAILURE IN PERFORMANCE, COMPUTER VIRUSES, INACCURACIES, ERRORS OR DEFECTS. YOU USE THE SERVICES AT YOUR OWN RISK. EACH OF THE PARTIES AND RELATED PARTIES ALSO ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, BROWSING, OR USE OF THE SERVICES OR YOUR DOWNLOADING OF ANY CONTENT ON THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND VIRUS CHECKS (INCLUDING ANTI-VIRUS AND OTHER SECURITY CHECKS) TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE ACCURACY AND SECURITY OF DATA INPUT AND OUTPUT. CMEG and/or TY HERNDON SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE SERVICES. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ALL USE OF THE SERVICES.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS SET OUT BELOW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, ANY BREACH OF CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY OR LIABILITY ARISING UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, (WHETHER OR NOT ANY OF THE PARTIES OR THE RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WILL ANY OF THE PARTIES OR THE RELATED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, THAT ARISE OUT OF OR IN CONNECTION WITH (A) THE USE OF THE SERVICES OR INABILITY TO USE THE SERVICES, OR ANY SITE CONTENT, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED OR ACCESSED THROUGH THE SERVICES; (B) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (C) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (D) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES AND, IN SUCH STATES OR JURISDICTIONS, CMEG, AND OR TY HERNDON, AND JOURNEY ON ENTERTAINMENT, AND THE PARTIES’ LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL ANY OF THE PARTIES OR RELATED PARTIES BE LIABLE FOR ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY US OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY OF YOUR CONTENT). IN NO EVENT SHALL THE PARTIES’ AND/OR THE RELATED PARTIES’ TOTAL, AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED, IN THE AGGREGATE (A) THE AMOUNT, IF ANY, PAID BY YOU TO US FOR YOUR USE OF THE SERVICES OR FOR ANY OF YOUR ACTIVITIES ON THE SERVIES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING YOUR CLAIM (EXCLUDING THE AMOUNTS PAID FOR ANY MERCHANDISE PURCHASED ON THE SERVICES), OR (B) ONE HUNDRED U.S. DOLLARS ($100.00 USD), WHICHEVER IS GREATER.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “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.” This release includes the criminal acts of others. If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and the Parties agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section is intended to be interpreted broadly and governs any and all disputes between you and either or both of the Parties, including but not limited to claims arising out of or relating to any aspect of the relationship between you and either or both of the Parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to your use of the Services); and claims that may arise after the termination of these Terms or agreement to arbitrate. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with the Parties as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Parties’ support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND THE PARTIES 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. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Changes to This Section: the Parties will provide thirty (30) days’ notice of any changes to this section by posting on the Service, sending you a message, or otherwise notifying you when you are logged into your account. Amendments will become effective thirty (30) days after they are posted on the Service or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Service.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your account or the Service.
NOTICE OF CLAIMS OF COPYRIGHT INFRINGEMENT
CMEG and/or TY HERNDON respect the intellectual property rights of others and require users of the Sites to do the same. In accordance with the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”) and other applicable law, it is each entity’s policy, in appropriate circumstances, to terminate the account of a user who is deemed to infringe third-party intellectual property rights and/or to remove user content that is deemed to be infringing. To notify CMEG and/or TY HERNDON of your claim of copyright infringement related to any Site Content, please send a written communication to the following designated copyright agent:
CMEG and/or TY HERNDON
P.O. BOX 331653
Nashville, TN 37203
Your notice must include:
1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3) Identification of material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6) A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Upon receiving a proper notification of copyright infringement as described above, we will remove or disable access to the allegedly infringing material and promptly notify the alleged infringer of your claim. We also will advise the alleged infringer of the counter-notification procedure, as described in and required by the DMCA.
If we receive a valid counter-notification, we will restore the removed or disabled material after ten (10), but no later than fourteen (14), business days from the date on which we receive the counter-notification, unless this Copyright Agent first receives notice from you, as the party filing the original notification of copyright infringement, informing us that you have filed a court action to restrain infringement of the material in question. Please also note that, pursuant to Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Please note that the above contact information is for intellectual property infringement notices only. DO NOT CONTACT THIS COPYRIGHT AGENT FOR OTHER INQUIRIES OR QUESTIONS.
CMEG and/or TY HERNDON reserve the right to modify, suspend, refuse or terminate, in the entities’ sole discretion, at any time, temporarily or permanently, for any or no reason and without notice or liability to you, any portion of the Services.
CMEG and/or TY HERNDON reserve the right to modify these Terms and/or any other guidelines or policies affecting the Services at any time, and all revisions will become effective upon the earlier of (a) posting of the revisions on the Sites, or (ii) distribution of the revisions by electronic mail. For this reason, please visit this page on a regular basis and check the “last updated and effective” date at the top of this page to ensure that you are familiar with the most recent version of these Terms. Your continued use of any of the Services after the effective date of any revisions means that you accept and agree to all such revisions. If you do not agree to, or cannot comply with, the modified Terms, you must stop using the Services.
You agree that CMEG and/or TY HERNDON may assign or delegate any of the rights or licenses granted hereunder, and/or transfer, sub-contract or delegate any of the obligations, under these Terms. Your agreement to these Terms is personal to you and you may not transfer or assign it, your rights, licenses, or obligations to any third party. Any attempted transfer or assignment in violation hereof shall be null and void.
GOVERNING LAW AND JURISDICTION
By visiting or using the Services, you agree that the laws of the United States of America and the laws of the State of Tennessee, without regard to the principles of conflicts of laws, will govern your use of the Services, and these Terms and all matters relating to your access to and/or use of the Services, including all disputes between you and us and/or any of the Parties and/or the Related Parties. You and CMEG and/or TY HERNDON irrevocably submit to the exclusive jurisdiction of, and venue in, the state and federal courts seated in Davidson County, Tennessee, and the related appellate courts, in any related action or proceeding. You hereby waive any and all jurisdictional and venue defenses otherwise available. YOU AGREE THAT ANY COURT ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES, THESE TERMS AND ALL MATTERS RELATING TO YOUR ACCESS TO AND/OR USE OF THE SERVICES MUST BE COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE FOR SUCH ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
These Terms constitute the entire agreement between you and us, and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us, with respect to your use of the Services and all matters relating to your access to, and/or use of, the Services except as expressly provided herein. A printed version of these Terms and of any notice given in electronic form shall be admissible in any and all judicial or administrative proceedings based upon or relating to these Terms to the same extent as other business documents and records originally generated and maintained in printed form.
If any part of these Terms is determined to be invalid or unenforceable under applicable law including, without limitation, the warranty disclaimers and liability limitations stated above, then the invalid or unenforceable provision(s) will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms shall continue in full force and effect.
If you have any questions about these Terms, please contact us at CUSTOMERSERVICE@TYHERNDON.COM