Viewer Terms of Service (“Terms”)
Last modified on 8/05/2020
Introduction; Your Agreement to these Terms.
- Welcome to Mandolin Software, Inc., the premiere virtual platform for high-quality concerts and other events streamed on the Internet (“Mandolin” or “We”). The “Mandolin Services” consist of our website (available at http://www.Mandolin.com), our software applications, and any other products or services we offer.THESE VIEWER TERMS OF SERVICE (“TERMS”) ARE ENTERED INTO BY AND BETWEEN YOU AND MANDOLIN. PLEASE READ THESE TERMS CAREFULLY BEFORE YOU START TO USE THE MANDOLIN SERVICES. BY USING THE MANDOLIN SERVICES OR BY CLICKING TO ACCEPT OR AGREE TO THESE TERMS WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS AND ACKNOWLEDGE RECEIPT OF OUR PRIVACY NOTICE, FOUND AT: https://www.mandolin.com/privacy-notice (THE “PRIVACY NOTICE”), INCORPORATED HEREIN BY REFERENCE. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE MANDOLIN SERVICES AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. IF YOU DO NOT WANT TO AGREE TO THESE TERMS OR THE PRIVACY NOTICE, YOU MUST NOT ACCESS OR USE THE MANDOLIN SERVICES, OR DISCONTINUE ANY ACCESS OR USE OF THE MANDOLIN SERVICES.
- When using the Mandolin Services, you will be subject to any Mandolin Community Guidelines and additional guidelines or rules that are posted on the Mandolin Services, made available to you, or disclosed to you in connection with specific services and features. Mandolin may also offer certain paid products and services, which are subject to the Mandolin terms of sale as well as any additional terms or conditions that are disclosed to you in connection with such products and services. All such terms, conditions, and guidelines (collectively, the "Guidelines") are incorporated into these Terms by reference.
- You agree that by signing in otherwise registering, downloading, accessing, or using the Mandolin Services, you are entering into a legally binding agreement between you and Mandolin regarding your use of the Mandolin Services. You acknowledge that you have read, understood, and agree to be bound by these Terms.
- When using Mandolin or opening an account with Mandolin on behalf of a subscribing company, entity, or organization (collectively, “Subscribing Organization”), you represent and warrant that you: (i) are an authorized representative of that Subscribing Organization with the authority to bind that organization to these Terms and grant the licenses set forth herein; and (ii) agree to these Terms on behalf of such Subscribing Organization.
Use of Mandolin by Minors and Blocked Persons.
- IF YOU ARE UNDER THE AGE OF EIGHTEEN (18) OR NOT A LEGAL U.S. RESIDENT, THEN YOU ARE NOT PERMITTED TO USE THE MANDOLIN SERVICES, OR REGISTER AS A USER, SIGN UP FOR ANY PROMOTIONAL MESSAGES, OR OTHERWISE PROVIDE OR SUBMIT TO US ANY PERSONAL INFORMATION OR ANY USER CONTENT (DEFINED BELOW).
- The Mandolin Services are also not available to any users previously removed from the Mandolin Services by Mandolin or to any persons barred from receiving them under the laws of the United States (such as its export and re-export restrictions and regulations) or applicable laws in any other jurisdiction.
Privacy Notice. Please see our Privacy Notice for information relating to how we collect, use, and disclose your personal information, and other privacy information provided to you on how you can manage your online privacy when you use the Mandolin Services. By downloading, installing, or otherwise using the Mandolin Services, you acknowledge and agree that Mandolin may collect, use, and disclose your personal information as set forth in the Privacy Notice.
- Account and Password. In order to open an account, you will be asked to provide us with certain information such as an account name and password. You are solely responsible for maintaining the confidentiality of your account, your password and for restricting access to your computer. If you permit others to use your account credentials, you agree to these Terms on behalf of all other persons who use the Services under your account or password, and you are responsible for all activities that occur under your account or password. Please make sure the information you provide to Mandolin upon registration and at all other times is true, accurate, current, and complete to the best of your knowledge. Unless expressly permitted in writing by Mandolin, you may not sell, rent, lease, share, or provide access to your account to anyone else, including without limitation, charging anyone for access to administrative rights on your account. You must immediately notify us if you suspect that your account name and password have been stolen, or been used without your permission.
- Use of Devices and Services. Access to the Mandolin Services may require the use of your personal computer or mobile device, as well as communications with or use of space on such devices. You are responsible for any Internet connection or mobile fees and charges that you incur when accessing or using the Mandolin Services.
- Modification of these Terms. Mandolin may amend any of the terms of these Terms by posting the amended terms on the website and providing reasonable prior notice regarding any material amendments to these Terms. All amendments may become effective immediately after posting, and in any case, within 30 calendar days after posting.
Your continued use of the Mandolin Services following any such notifications constitutes your acceptance of such modifications and your agreement to be bound by the updated Terms. If you do not agree to any modification of the updated Terms, your sole remedy is to discontinue your use of the Mandolin Services. The most current version of the Terms will be available on our website and supersedes previous versions.
- The Mandolin Services are owned and operated by Mandolin. Unless otherwise indicated, all content, information, and other materials on the Mandolin Services (excluding User Content, set out in Section 8 below), including, without limitation, Mandolin’s trademarks and logos, the visual interfaces, graphics, design, compilation, information, software, computer code (including source code or object code), services, text, pictures, information, data, sound files, other files, and the selection and arrangement thereof (collectively, the “Mandolin Materials”) are protected by relevant intellectual property and proprietary rights and laws. All Mandolin Materials are the property of Mandolin and/or third-party licensors. Unless otherwise expressly stated in writing by Mandolin, by agreeing to these Terms you are granted a limited, revocable, non-transferable, non-sublicensable, limited license (i.e., a personal and limited right) to access and use the Mandolin Services and Mandolin Materials for your personal use or internal business use only.
- MANDOLIN, the Mandolin logos, and any other product or service name, logo, or slogan used by Mandolin, and the look and feel of the Mandolin Services, including all page headers, custom graphics, button icons, and scripts, are trademarks or trade dress of Mandolin, and may not be used in whole or in part in connection with any product or service that is not Mandolin’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Mandolin, without our prior written permission. Any use of these trademarks must be in accordance with any Mandolin Trademark Guidelines. All other trademarks referenced in the Mandolin Services are the property of their respective owners. Reference on the Mandolin Services to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us or any other affiliation.
- Mandolin reserves all rights not expressly granted in these Terms. This license is subject to these Terms and does not permit you to engage in any of the following: (a) resale or commercial use of the Mandolin Services or the Mandolin Materials; (b) distribution, public performance or public display of any Mandolin Materials; (c) modifying or otherwise making any derivative uses of the Mandolin Services or the Mandolin Materials, or any portion of them; (d) use of any data mining, robots, or similar data gathering or extraction methods; (e) downloading (except page caching) of any portion of the Mandolin Services, the Mandolin Materials, or any information contained in them, except as expressly permitted on the Mandolin Services; or (f) any use of the Mandolin Services or the Mandolin Materials except for their intended purposes. Any use of the Mandolin Services or the Mandolin Materials except as specifically authorized in these Terms, without the prior written permission of Mandolin, is strictly prohibited and may violate intellectual property rights or other laws. Unless explicitly stated in these Terms, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication, or other legal principles. Mandolin can terminate this license as set out in Section 13.
- The Mandolin Services allow you to use features, such as comments, emojis, chat, and certain postings; and to participate in other activities in which you may create, post, transmit, perform, or store content, messages, text, on or through the Mandolin Services (“User Content”).
- License to Mandolin. If you submit, transmit, display, perform, post, or store User Content using the Mandolin Services, you grant Mandolin and its sublicensees, to the furthest extent and for the maximum duration permitted by applicable law (including in perpetuity if permitted under applicable law), an unrestricted, worldwide, irrevocable, fully sublicenseable, nonexclusive, and royalty-free right to: (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such User Content, including without limitation for promoting and redistributing part or all of the Mandolin Services (and derivative works thereof) in any form, format, media, or media channels now known or later developed or discovered; and (b) use the name, identity, social media profile, likeness, and voice (or other biographical information) that you submit in connection with such User Content. Should such User Content contain the name, identity, likeness, voice, or other biographical information of third parties, you represent and warrant that you have obtained the appropriate consents and/or licenses for your use of such features and that Mandolin and its sub-licensees are allowed to use them to the extent indicated in these Terms.
- User Content Representations and Warranties. You are solely responsible for your User Content and the consequences of posting or publishing it. You represent and warrant that: (1) you are the creator or own or control all right in and to the User Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your User Content does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, or (b) defame any other person; (3) your User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) your User Content does not contain any confidential information of Mandolin or any third parties. Mandolin reserves all rights and remedies against any users who breach these representations and warranties.
- Additional Limitations. Without creating any obligations to, Mandolin may, at its sole discretion, monitor the creation and/or submission of User Content. To the extent permitted by applicable law, Mandolin takes no responsibility and assumes no liability for any User Content or for any loss or damage resulting therefrom, nor is Mandolin liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter when using the Mandolin Services. Mandolin may delete or otherwise remove any User Content at its sole discretion, at any time, for any reason. Mandolin does not make any guarantees that the User Content will be protected or secured, and to the furthest extent permitted by applicable law, you acknowledge and agree that Mandolin shall not be liable for any loss, dissemination, unauthorized copying, use, or distribution of User Content by third parties and release and forever waive any claims you may have against Mandolin for any such loss, dissemination, unauthorized copying or usage of the User Content, under any theory.
- Removal. Mandolin is not liable for any statements or representations included in User Content. Mandolin does not endorse any User Content, opinion, recommendation, or advice expressed therein, and Mandolin expressly disclaims any and all liability in connection with User Content. To the fullest extent permitted by applicable law, Mandolin reserves the right to remove, screen, or edit any User Content posted or stored on the Mandolin Services at any time and without notice, including where such User Content violates these Terms or applicable law, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Mandolin Services at your sole cost and expense. Any use of the Mandolin Services in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Mandolin Services.
- Endorsements/Testimonials. You agree that your Internet postings, including User Content, will comply with the FTC’s Guidelines Concerning the Use of Testimonials and Endorsements in Advertising, the FTC’s Disclosures Guide, the FTC’s Native Advertising Guidelines, and any other guidelines issued by the FTC from time to time (the “FTC Guidelines”), as well as any other advertising guidelines required under applicable law. For example, if you have been paid or provided with free products in exchange for discussing or promoting a product or service through the Mandolin Services, or if you are an employee of a company and you decide to discuss or promote that company’s products or services through the Mandolin Services, you agree to comply with the FTC Guidelines’ requirements for disclosing such relationships. You, and not Mandolin, are solely responsible for any endorsements or testimonials you make regarding any product or service through the Mandolin Services.
Prohibited Conduct. You agree not to violate any law, contract, intellectual property, or other third-party right; not to commit a tort, and that you are solely responsible for your conduct while using the Mandolin Services. Specifically, and without limitation, you agree that you will comply with these Terms and Mandolin’s Guidelines and will not:
- create, upload, transmit, distribute, or store any content that is inaccurate, unlawful, infringing, defamatory, bullying, obscene, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, or otherwise objectionable;
- impersonate any person or entity; falsely claim an affiliation with any person or entity; access the Mandolin Services accounts of others without permission; forge another person’s digital signature; misrepresent the source, identity, or content of information transmitted via the Mandolin Services; or perform any other similar fraudulent activity;
- send junk mail or spam to users of the Mandolin Services, including without limitation unsolicited advertising, promotional materials, or other solicitation material; bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, petitions for signatures, or any of the preceding things related to promotional giveaways (such as raffles and contests); and other similar activities;
- harvest or collect email addresses or other contact information of other users from the Mandolin Services;
- defame, harass, abuse, bully, threaten, or defraud users of the Mandolin Services, or collect or attempt to collect, personal information about users or third parties without their consent;
- delete, remove, circumvent, disable, damage, or otherwise interfere with (a) security-related features of the Mandolin Services or User Content, (b) features that prevent or restrict use or copying of any content accessible through the Mandolin Services, (c) features that enforce limitations on the use of the Mandolin Services or User Content, or (d) the copyright or other proprietary rights notices on the Mandolin Services or User Content;
- reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Mandolin Services or any part thereof, except and only to the extent that this activity is expressly permitted by the law of your jurisdiction of residence;
- modify, adapt, translate, or create derivative works based upon the Mandolin Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- interfere with or damage the operation of the Mandolin Services or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
- relay email from a third party’s mail servers without the permission of that third party;
- access any website, server, software application, or other computer resource owned, used, and/or licensed by Mandolin, including but not limited to the Mandolin Services, by means of any robot, spider, scraper, crawler, or other automated means for any purpose, or bypass any measures Mandolin may use to prevent or restrict access to any website, server, software application, or other computer resource owned, used, and/or licensed by Mandolin, including but not limited to the Mandolin Services;
- manipulate identifiers in order to disguise the origin of any User Content transmitted through the Mandolin Services;
- interfere with or disrupt the Mandolin Services or servers or networks connected to the Mandolin Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Mandolin Services; use the Mandolin Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Mandolin Services, or that could damage, disable, overburden, or impair the functioning of the Mandolin Services in any manner;
- use or attempt to use another user’s account without authorization from that user and Mandolin;
- attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the Mandolin Services that you are not authorized to access;
- attempt to indicate in any manner, without our prior written permission, that you have a relationship with us or that we have endorsed you or any products or services for any purpose; and
- use the Mandolin Services for any illegal purpose, or in violation of any local, state, national, or international law or regulation, including without limitation laws governing intellectual property and other proprietary rights, data protection, and privacy.
Respecting Copyright, DMCA. Mandolin respects the intellectual property of others and follows the requirements set forth in the Digital Millennium Copyright Act (“DMCA”) and other applicable laws. The DMCA established a process for addressing claims of copyright infringement.
- If you own a copyright or have authority to act on behalf of a copyright owner and want to report a claim that a third party is infringing that material on or through Mandolin’s services, please send a notice with all of the items below, to the address below, and we will take appropriate action:
- A description of the copyrighted work that you claim is being infringed;
- A description of the material you claim is infringing and that you want removed or access to which you want disabled and the URL or other location of that material;
- Your name, title (if acting as an agent), address, telephone number, and email address;
- The following statement: “I have a good faith belief that the use of the copyrighted material I am complaining of is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)”;
- The following statement: “The information in this notice is accurate and, under penalty of perjury, I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right that is allegedly infringed”; and
- An electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.
- Submissions under this DMCA Policy should be sent to email@example.com.
- We will review your submission and take whatever action we deem appropriate under the DMCA, including removal of the challenged content from the website. Further, we may, in appropriate circumstances, disable or terminate the accounts of repeat infringers.
- Mandolin may provide other third-party content on or through the Mandolin Services (collectively, the “Third-Party Content”). Mandolin does not control or endorse any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness.
- You are responsible for deciding if you want to access or use third-party websites or applications that link from the Mandolin Services (the “Linked Sites”). Mandolin does not control or endorse any such Linked Sites or the information, materials, products, or services contained on or accessible through Linked Sites, and makes no representations or warranties of any kind regarding the Linked Sites. In addition, your correspondence or business dealings with, or participation in promotions of, promoters, presenters, performers, venues, or advertisers found on or through the Mandolin Services are solely between you and such person or entity. Access and use of Linked Sites, including the information, materials, products, and services on or available through Linked Sites is solely at your own risk.
Idea Submission. By submitting ideas, suggestions, documents, and/or proposals (the “Submissions”) to Mandolin or its employees, you acknowledge and agree that Mandolin shall be entitled to use or disclose such Submissions for any purpose in any way without providing compensation or credit to you.
Termination. To the fullest extent permitted by applicable law, Mandolin reserves the right, without notice and in our sole discretion, to terminate your license to use the Mandolin Services (including to post User Content) and to block or prevent your future access to and use of the Mandolin Services, including where we reasonably consider that: (a) your use of the Mandolin Services violates these Terms or applicable law; (b) you fraudulently use or misuse the Mandolin Services; or (c) we are unable to continue providing the Mandolin Services to you due to technical or business reasons. Our right to terminate your license includes the ability to terminate or to suspend your access to any purchased products or services, including any subscriptions on/via the Mandolin Services. To the fullest extent permitted by applicable law, your only remedy with respect to any dissatisfaction with: (i) the Mandolin Services, (ii) any term of these Terms, (iii) any policy or practice of Mandolin in operating the Mandolin Services, or (iv) any content or information transmitted through the Mandolin Services, is to terminate your account and to discontinue use of any and all parts of the Mandolin Services.
Indemnification. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS MANDOLIN, ITS AFFILIATED COMPANIES, AND EACH OF OUR RESPECTIVE CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, THIRD-PARTY SUPPLIERS, LICENSORS, AND PARTNERS (INDIVIDUALLY AND COLLECTIVELY, THE “MANDOLIN PARTIES”) FROM ANY CLAIMS, LOSSES, DAMAGES, DEMANDS, EXPENSES, COSTS, AND LIABILITIES, INCLUDING LEGAL FEES AND EXPENSES, ARISING OUT OF OR RELATED TO YOUR ACCESS, USE, OR MISUSE OF THE MANDOLIN SERVICES, ANY USER CONTENT YOU RECEIVE, ACCESS, USE, POST, STORE, OR OTHERWISE TRANSMIT IN OR THROUGH THE MANDOLIN SERVICES, YOUR VIOLATION OF THE RIGHTS OF ANY THIRD PARTY, ANY VIOLATION BY YOU OF THESE TERMS, OR ANY BREACH OF THE REPRESENTATIONS, WARRANTIES, AND COVENANTS MADE BY YOU HEREIN. YOU AGREE TO PROMPTLY NOTIFY THE MANDOLIN PARTIES OF ANY THIRD-PARTY CLAIM, AND MANDOLIN RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY MANDOLIN, AND YOU AGREE TO COOPERATE WITH MANDOLIN’S DEFENSE OF THESE CLAIMS. MANDOLIN WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
Disclaimers; No Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) THE MANDOLIN SERVICES AND ANY USER CONTENT AND MATERIALS CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED; (B) THE MANDOLIN PARTIES DISCLAIM ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE MANDOLIN SERVICES, THE MANDOLIN MATERIALS, AND ANY INFORMATION, CONTENT, OR MATERIALS CONTAINED THEREIN; (C) MANDOLIN DOES NOT REPRESENT OR WARRANT THAT THE USER CONTENT OR MATERIALS ON THE MANDOLIN SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE; (D) MANDOLIN IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS RELATING TO THE USER CONTENT, OR ANY PORTION OF THE MANDOLIN SERVICES; AND (E) MANDOLIN CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE MANDOLIN SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND THEREFORE, YOUR USE OF THE MANDOLIN SERVICES IS SOLELY AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MANDOLIN OR THROUGH THE MANDOLIN SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
Limitation of Liability and Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL MANDOLIN OR THE MANDOLIN PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE MANDOLIN SERVICES, THE USER CONTENT OR THE MANDOLIN MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM MANDOLIN, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO MANDOLIN’S RECORDS, PROGRAMS, OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MANDOLIN, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE MANDOLIN SERVICES AND/OR MANDOLIN MATERIALS EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE MANDOLIN SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. TO THE EXTENT THAT APPLICABLE LAW PROHIBITS LIMITATION OF SUCH LIABILITY, MANDOLIN SHALL LIMIT ITS LIABILITY TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW.
Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT MANDOLIN HAS OFFERED THE MANDOLIN SERVICES, USER CONTENT, MANDOLIN MATERIALS, AND OTHER CONTENT AND INFORMATION, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MANDOLIN, AND THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MANDOLIN. MANDOLIN WOULD NOT BE ABLE TO PROVIDE THE MANDOLIN SERVICES AND THE MANDOLIN MATERIALS, TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
Applicable Law and Venue. To the fullest extent permitted by applicable law, you and Mandolin agree that if you are a Subscribing Organization or a consumer resident of a jurisdiction other than those in 18.d) below, the following governing law and arbitration provision applies:
- PLEASE READ THE FOLLOWING CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH MANDOLIN AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM MANDOLIN.
- You and Mandolin agree to arbitrate any dispute arising from these Terms or your use of the Mandolin Services and/or Mandolin Materials, except that you and Mandolin are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
- You and Mandolin agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Mandolin shall be sent to: Highest Officer Found, 830 Massachusetts Ave., Suite 1500, Floor 4, Indianapolis, IN 46204. You and Mandolin further agree: to attempt informal resolution prior to any demand for arbitration; that any arbitration will occur in Marion County, Indiana; that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and that the state or federal courts in Marion County, Indiana have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by this Agreement and the laws of the State of Indiana and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and Mandolin will not commence against the other a class action, class arbitration, or other representative action or proceeding.
- If you are a resident in any jurisdiction in which the provision in the section above is found to be unenforceable, then any disputes, claims, or causes of action arising out of or in connection with these Terms will be governed by and construed under the laws of your jurisdiction of residence, and shall be resolved by competent civil courts within your jurisdiction of residence.
- Claims. YOU AND MANDOLIN AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE MANDOLIN SERVICES AND/OR MANDOLIN MATERIALS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Waiver. If we fail to exercise or enforce any right or provision of these Terms, it will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by the relevant party.
- Severability. If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
- Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Mandolin without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
- Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 7, 8, 10, 11, 12, 14, 15, and 16.
- Entire Agreement. These Terms, which incorporate the Terms of Sale and the Mandolin Guidelines, is the entire agreement between you and Mandolin relating to the subject matter herein and will not be modified except by a writing signed by authorized representatives of both parties, or by a change to these Terms made by Mandolin as set forth in Section 6 above.