Advertisements. DMR is not responsible for advertisements or any third-party material posted on any of the DMR Services, nor is DMR responsible for the products or services provided by advertisers. Any dealings you have with advertisers found while using the DMR Services are between you and the advertiser, and you agree that DMR is not liable for any loss or claim that you may have against an advertiser.
From time to time, the Services and/or its Advertisers, operational service providers and suppliers may conduct promotions on or through the Services, including, but not limited to, auctions, contests and sweepstakes (“Promotions”). Each Promotion may have Additional Terms, such as the rules governing any voting relating to a Promotion and other rules relating to the Promotion, which will be posted or otherwise made available to you and, for purposes of each Promotion, are Additional Terms and will be deemed incorporated into and form a part of this Agreement.
THE DMR SERVICES AND CONTENT ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” DMR DOES NOT GUARANTEE OR PROMISE ANY SPECIFIC RESULTS FROM USE OF OR CONTINUOUS AVAILABILITY OF THE DMR SERVICES OR CONTENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DMR EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FOR A COURSE OF PERFORMANCE OR COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DMR MAKES NO WARRANTY THAT YOUR USE OF THE DMR SERVICES OR CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, THAT DEFECTS TO THE DMR SERVICES OR CONTENT WILL BE CORRECTED, THAT THE DMR SERVICES, CONTENT OR THE SERVERS ON WHICH THEY ARE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY INFORMATION OBTAINED BY YOU ON, THROUGH OR IN CONNECTION WITH THE DMR SERVICES OR THIRD PARTY SERVICES (INCLUDING, BUT NOT LIMITED TO, THROUGH USER CONTENT OR THIRD PARTY ADVERTISEMENTS) WILL BE ACCURATE, RELIABLE, TIMELY OR COMPLETE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DMR WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROPERTY DAMAGE, PERSONAL INJURY OR DEATH) RESULTING FROM USE OF THE DMR SERVICES, CONTENT, PROBLEMS OR TECHNICAL MALFUNCTION IN CONNECTION WITH USE OF THE DMR SERVICES, CONTENT, ATTENDANCE AT A DMR EVENT, ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED IN CONNECTION WITH THE DMR SERVICES OR CONTENT, ANY USER CONTENT, ANY THIRD PARTY ADVERTISEMENT OR THIRD PARTY SERVICE TRANSMITTED ON, THROUGH OR IN CONNECTION WITH THE DMR SERVICES, OR THE CONDUCT OF ANY USERS OF THE DMR SERVICES OR CONTENT, WHETHER ONLINE OR OFFLINE. YOUR USE OF POSTS, THIRD PARTY ADVERTISEMENTS, THIRD PARTY SERVICES, AND THE GOODS OR SERVICES PROVIDED BY ANY THIRD PARTIES IS SOLELY YOUR RESPONSIBILITY AND AT YOUR OWN RISK.
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE DMR SERVICES AND CONTENT, AND ANY INFORMATION TRANSMITTED OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME RESPONSIBILITY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, FOR THE ENTIRE COST OF ANY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY OR RECOVERY OR RECONSTRUCTION OF LOST DATA NECESSITATED BY YOUR USE OF THE DMR SERVICES.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DMR’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO DMR FOR THE DMR SERVICES AND CONTENT DURING THE TERM OF YOUR USE OF THE DMR SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DMR WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OTHER THAN THE AMOUNT PAID, IF ANY, BY YOU TO DMR FOR THE DMR SERVICES DURING THE TERM OF YOUR USE OF THE DMR SERVICES, INCLUDING ANY OTHER GENERAL, DIRECT, INDIRECT, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, AND INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO ACCESS OR USE THE DMR SERVICES OR CONTENT.
YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR ARISING OUT OF DMR’S ACTS OR OMISSIONS OR YOUR USE OF DMR SERVICES OR CONTENT ARE NOT IRREPARABLE AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF OR ANY PERSON’S ABILITY TO ACCESS OR USE ANY PORTION OF THE DMR SERVICES OR CONTENT.
THE LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF DMR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
(3) Each of you and DMR also agrees to give up the ability to seek to represent, in a class action or otherwise, anyone but each of you and DMR (see paragraph 9 below).
(7) If either you or DMR wish to arbitrate a claim, you or DMR must first send by mail to the other a written Notice of Dispute ( “Notice”) that sets forth the name, address, and contact information of the party giving notice, the specific facts giving rise to the Dispute, the DMR Service to which the Notice relates, and the relief requested. Your Notice to the DMR must be sent by mail to: Arbitration Notice of Dispute, 264 W 40th Street, 15th Floor, NY, NY 10018. DMR will send any Notice to you at the contact information we have for you or that you provide. It is the sender’s responsibility to ensure that the recipient receives the Notice. During the first 45 days after you or we send a Notice to the other, you and we may try to reach a settlement of the Dispute.
(8) If you and we do not resolve the Dispute within 45 days, either you or we may initiate arbitration in accordance with the JAMS Rules. Further instructions on submitting a Demand for Arbitration may be found at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf. In addition to filing this Demand for Arbitration with JAMS in accordance with its rules and procedures, you must send a copy of this completed Demand for Arbitration to the DMR at the address listed above to which you sent your Notice of Dispute.
(9) You and the DMR acknowledge and agree to abide by the following rules for arbitration:
(10) JAMS charges filing and other fees to conduct arbitrations. Ordinarily, the claimant has to pay the filing fee to initiate arbitration, but if you wish to commence an arbitration against DMR, you and the DMR acknowledge and agree to abide by the following:
(11) Regardless of how the arbitration proceeds, each of you and DMR shall cooperate in good faith in the exchange of non-privileged documents and information as necessary in accordance with the JAMS Rules, and the arbitrator shall issue a reasoned written decision sufficient to explain his or her findings and conclusions.
(12) Each of you and DMR may incur attorneys’ fees during the arbitration. Each side agrees to pay his, her or its own attorneys’ fees unless the claim(s) at issue permit the prevailing party to be paid its attorneys’ fees, and in such instance, the fees awarded shall be determined by the applicable law(s). In addition to whatever rights you may have to recover your attorneys’ fees under applicable law, if you prevail in the arbitration, and if DMR failed to make a settlement offer to you before the arbitration or the amount you win is at least 25% greater than DMR’s highest settlement offer, then DMR will pay your reasonable attorneys’ fees in addition to the amount the arbitrator awarded. If DMR wins the arbitration, you will be responsible for your own attorneys’ fees. In addition, if the arbitrator, at the request of the winning party, finds that the losing party brought a claim or asserted a defense frivolously or for an improper purpose, then regardless of the amount in dispute, the arbitrator must order the losing party to pay both sides’ arbitration fees and may order the losing party to pay the winning party’s reasonable attorneys’ fees, unless such an award of fees is prohibited by applicable law.
(14) You and DMR agree to maintain the confidential nature of the arbitration proceeding and shall not disclose the fact of the arbitration, any documents exchanged as part of any mediation, proceedings of the arbitration, the arbitrator’s decision and the existence or amount of any award, except as may be necessary to prepare for or conduct the arbitration (in which case anyone becoming privy to confidential information must undertake to preserve its confidentiality), or except as may be necessary in connection with a court application for a provisional remedy, a judicial challenge to an award or its enforcement, an order confirming the award, or unless otherwise required by law or court order. In keeping with the confidential nature of the arbitration, You and DMR agree that an order confirming award is only necessary if the obligations of the award have not been performed. Therefore, before taking any steps to confirm the arbitration award, the party seeking confirmation of the award must give the other party notice of its intention to confirm the award. If the party who would be the respondent in any such confirmation proceeding performs its obligation under the terms of the arbitration award within 15 business days of such notice, the party who gave notice of its intent to confirm the award shall not seek to confirm or otherwise enforce the award.
You may cancel your Account via the functionality provided in DMR Services.
Upon any termination, discontinuation or cancellation of the DMR Services or your Account, the following Sections will survive 2(b)(ii), 2(f)(ii), 2(g), 2(h), 6, 8, 10, 11, and 12.
Export Controls. Software and the transmission of applicable technical data, if any, in connection with the DMR Services are subject to export controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported from the United States or the country in which you reside.
Choice of Law and Forum.
Except with respect to Disputes to be resolved through an arbitration process in accordance with the Arbitration Agreement contained above, you and DMR agree to submit to the exclusive jurisdiction of the courts located in the state of New York, USA to resolve any Dispute arising out of the Agreement or the DMR Services. YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT YOU MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS, OR THIRD PARTY CLAIMS) ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE DMR SERVICES, OR CONTENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.