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(A) Interactive Areas.
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You agree not to upload, post, or otherwise transmit any User Content that:
violates or infringes in any way upon the rights of others, including any statements which may defame, harass, stalk or threaten others.you know to be false, misleading, or inaccurate.
contains blatant expressions of bigotry, racism, racially or ethnically offensive content, hate speech, abusiveness, vulgarity or profanity.contains or advocates pornography or sexually explicit content, pedophilia, incest, bestiality, or that is otherwise obscene or lewd.violates any law or advocates or provides instruction on dangerous, illegal, or predatory acts, or discusses illegal activities with the intent to commit them.advocates violent behavior.
poses a reasonable threat to personal or public safety.contains violent images of killing or physical abuse that appear to have been captured solely, or principally, for exploitive, prurient, or gratuitous purposes.is protected by copyright, trademark, trade secret, right of publicity, or another proprietary right without the express permission of the owner of such copyright, trademark, trade secret, right of publicity, or another proprietary right. The burden of determining that any User Content is not protected by copyright, trademark, trade secret, right of publicity, or other proprietary right rests with you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, trade secrets, rights of publicity or other proprietary rights, or any other harm resulting from such a submission. Any person determined by Forbes Alert, in its sole discretion, to have violated the intellectual property or other rights of others shall be barred from submitting or posting any further material on the Site.does not generally pertain to the designated topic or theme of any Interactive Area.contains any unsolicited or unauthorized advertising or promotional materials with respect to products or services, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.You agree not to engage in activity that would constitute a criminal offense or give rise to civil liability.You agree that if necessary, you have the consent of each and every identifiable natural person in any submission to use such person’s name or likeness in the manner contemplated by the Site.You agree that any person who appears in your submission who is a current member of the Screen Actors Guild (SAG), the American Federation of Television and Radio Actors (AFTRA), or any other rights society is not entitled to compensation by Forbes Alert. You agree not to impersonate any person or entity, including, but not limited to, Forbes Alert or any Forbes Alert employee, or falsely state or otherwise misrepresent your affiliation with any person or entity.You agree not to represent or suggest, directly or indirectly, Forbes Alert’s endorsement of User Content.You agree not to interfere with any other user’s right to privacy, including by harvesting or collecting personally-identifiable information about the Site users or posting private information about a third party.You agree not to upload, post or otherwise transmit any User Content, software or other materials which contain a virus or other harmful or disruptive component.You agree not to interfere with or disrupt the Site or the servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site.You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the Site, use the Site, or access to the Site.You agree not to use any service, technology or automated system to artificially inflate the page views that your User Content receives. This includes pay-per-click services, web “robots” and any other current or future technologies. You also agree not to direct any third party to use these services, technologies or automated systems on your behalf.
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The decision by Forbes Alert to monitor and/or modify User Content does not constitute nor shall it be deemed to constitute any responsibility or liability in any manner on the part of Forbes Alert in connection with or arising from use by you of Interactive Areas on the Site.
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(E) Moral Rights.
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Disclaimer of Warranty;
Limitation of Liability and Time Limitation for Claims.
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Any and all disputes, claims, and controversies arising out of or in connection with your access to, and/or use of the Sites, and/or the provision of content, services, and/or technology on or through the Sites shall be governed by and construed exclusively in accordance with the laws and decisions of the State of New York applicable to contracts made, entered into and performed entirely therein, without giving effect to its conflict of laws provisions, except to the extent that law is inconsistent with or preempted by federal law. To the extent that a dispute is not subject to arbitration under Section 12 (Dispute Resolution) of this Agreement, that action shall be brought in the appropriate state or federal court located in New York County, New York; and we both irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in New York County, New York for the adjudication of all non-arbitral claims.
Except as specified in Section 12 (Dispute Resolution), if any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable for this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between the parties relating to the matters contained herein.
Our customer-service department can resolve most customer concerns quickly and to the customer’s satisfaction. Please contact Forbes Alert at Forbes Alert.com/feedback. In the unlikely event that you’re not satisfied with customer service’s solution (or if Forbes Alert has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small-claims court instead of in courts of general jurisdiction.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Unless expressly limited by this Dispute Resolution provision, arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. For any non-frivolous claim that does not exceed $75,000, we will pay all costs of the arbitration. Moreover, in arbitration, you are entitled to recover attorneys’ fees from us to at least the same extent as you would be in court.
In addition, under certain circumstances (as explained below), we will pay you more than the amount of the arbitrator’s award and will pay your attorney (if any) twice his or her reasonable attorneys’ fees if the arbitrator awards you an amount that is greater than what we have offered you to settle the dispute.
(1) Claims Subject to Arbitration:
Forbes Alert and you agree to arbitrate all disputes and claims between us, except for claims arising from bodily injury or that pertain to enforcing, protecting, or the validity of your or our intellectual property rights (or the intellectual property rights of any of our licensors, affiliates and partners). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation or any other statutory or common-law legal theory;claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);claims for mental or emotional distress or injury not arising out of physical bodily injury;claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this Agreement.References to “Forbes Alert,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises; our respective predecessors in interest, successors, and assigns (including AT&T and its affiliates); and all authorized or unauthorized users or beneficiaries of Services under this or prior Agreements between us. Notwithstanding the foregoing, either party may bring an action in small claims court seeking only individualized relief, so long as the action remains in that court and is not removed or appealed to a court of general jurisdiction. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and we are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
(2) Pre-Arbitration Notice of Disputes:
A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice to Forbes Alert should be sent by certified mail to: General Counsel, Warner Media News & Sports, 1 Forbes Alert Center, Atlanta, GA 30303 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”).
If we and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or us are entitled. You may download a form to initiate arbitration at: adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_1.pdf.
(3) Arbitration Procedure:
The arbitration will be governed by the Consumer Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this arbitration provision, and will be administered by the AAA. (If the AAA is unavailable, another arbitration provider shall be selected by the parties or by the court.) The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them in writing at the Notice Address. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision or whether a dispute can or must be brought in arbitration are for the court to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers. Unless we and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as provided in subsection (6) below, the arbitrator can award the same damages and individualized relief that a court can award under applicable law.
(4) Arbitration Fees:
After we receive notice at the Notice Address that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000 in value. (The filing fee currently is $200 but is subject to change by the arbitration provider. If you are unable to pay this fee, we will pay it directly upon receiving a written request at the Notice Address.) We will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies we previously paid that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek relief valued at greater than $75,000 (either to you or to us), the payment of these fees will be governed by the AAA rules.
(5) Alternative Payment and Attorney Premium:
If you initiated arbitration in accordance with the notice requirements above in subsection (2) and the arbitrator issues an award in your favor that is greater than the value of our last written settlement offer made before an arbitrator was selected, then we will:
pay you the amount of the award or $10,000 (“the alternative payment”), whichever is greater; and
pay your attorney, if any, twice the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration (“the attorney premium”).
If we did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and the attorney premium, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the alternative payment and the attorney premium at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. In assessing whether an award that includes attorneys’ fees or expenses is greater than the value of our last written settlement offer, the calculation shall include only the portion of the award representing attorneys’ fees or expenses that you reasonably incurred pursuing the arbitration through the date of our settlement offer.
The right to the attorney premium supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover both the attorney premium and a duplicative award of attorneys’ fees or costs. Although under some laws we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we agree that we will not seek such an award.
(6) Requirement of Individual Arbitration:
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and we agree that each may bring claims against the other only in your or our individual capacity, and not as a plaintiff or class member in any purported class, representative, or private attorney general proceeding. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then that claim or request for relief shall be severed, and all other claims and requests for relief shall be arbitrated.
(7) Future Changes to Arbitration Provision:
Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future change to this arbitration provision (other than a change to the Notice Address), you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
Neither Forbes Alert nor you shall be liable for damages or for delays or failures in performance resulting from acts or occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water, acts of God, war, terrorism, revolution, civil commotion or acts of civil or military authorities or public enemies: any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; inability to secure raw materials, transportation facilities, fuel or energy shortages, or acts or omissions of other common carriers.
Copyrights and Copyright Agent.
Forbes Alert respects the rights of all copyright holders and in this regard, Forbes Alert has adopted and implemented a policy that provides for the termination in appropriate circumstances of users and account holders who infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Forbes Alert’s Copyright Agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. 512:
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 copyright 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 the 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 the complaining party;
5. A statement that the complaining party has 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 the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.