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TERMS OF USE
Terms of Use
Effective as of January 1, 2022
PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING OR USING THIS WEBSITE, YOU AGREE TO BE BOUND BY THE TERMS, CONDITIONS, AND NOTICES DESCRIBED HEREIN, IN OUR PRIVACY POLICY, AND ANY OTHER TERMS INCORPORATED BY REFERENCE. THE TERMS OF USE CONTITUTE A BINDING CONTRACT BETWEEN Old Pueblo Poblano. AND YOU. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEBSITE.
This website is operated by Old Pueblo Poblano. (“Old Pueblo Poblano,” the “Company,” “we,” or “us”). Any person accessing or using the Site (as defined below) is referred to as “you.” These Terms of Use apply to your access to, and use of tusconpoblano.com and the various websites, applications, widgets, email notifications and other mediums, or portions of such mediums, through which you may have accessed tusconpoblano.com and/or the terms, conditions, and notices stated herein, (collectively, the “Site”) and to any services we provide in connection therewith including providing businesses with marketing technology to reach new movers (the “Services”).
We reserve the right to change or modify any of the terms and conditions contained in the Terms of Use or any policy or guideline of the Site, at any time and in our sole discretion. Any changes or modification will be effective immediately upon posting of the revisions on the Site, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Site following the posting of changes or modifications will confirm your acceptance of such changes or modifications.
All questions or comments about the Site or site content should be directed here: oldpueblopoblano@gmail.com
1. Privacy Policy
Our Privacy Policy, which is incorporated as part of the Terms of Use by this reference, describes how we may collect, transfer, manipulate, store, disclose and use information gathered from or provided by you through or in connection with the Site and/or the Services. You can review our Privacy Policy at https://tucsonpoblano.com/privacy-policy/.
2. Acceptance of Terms
These Terms of Use contain a binding arbitration agreement, which provides that you and we agree to resolve certain disputes through binding individual arbitration and give up any right to have those disputes decided by a judge or a jury. You have the right to opt out of our agreement to arbitrate. See the “Legal Disputes” section of the Terms of Use.
3. General Use of the Site and Services
By using this Site, you affirm and agree that:
You are at least 18 years old;
You are fully able and competent to enter into a binding contract, and to abide by and comply with the Terms of Use;
Any information you provide will be accurate, current, and complete; and
You will only use the Site in a manner consistent with all applicable laws and regulations existing now or adopted at any later date.
4. Copyright and Limited License
Unless otherwise indicated on the Site, the Site and all content and other materials on the Site, including, without limitation, Old Pueblo Poblano's logo, and all designs, text, graphics, pictures, information, data, software, tools, widgets, sound files, other files, and the selection and arrangement thereof (collectively, the “Site Materials”) are the proprietary property of Old Pueblo Poblano or its licensors or users and are protected by U.S. and international copyright laws.
Unless otherwise specified herein, subject to your compliance with the Terms of Use, we grant you a limited, non-sublicensable, revocable license to use the Site and our Services solely for your own informational, personal, non-commercial purposes only. Such license is subject to these Terms of Use and does not include (a) any resale or commercial use of the Site or the Services therein; (b) the reproduction, distribution , public performance, or public display of any Site Materials, except as expressly permitted on the Site; (c) modifying or otherwise making any derivative uses of the Site and the Site Materials, or any portion thereof; (d) use of any data mining, “screen scraping,” “database scraping,” robots, or similar data gathering methods with the purpose of obtaining lists of users or other information; (e) damaging, disabling, overburdening, or impairing the Site or interfering with any other party’s use and enjoyment of the Site; (f) downloading (other than the page caching) of any portion of the Site, the Site Materials, or any information contained therein, except as expressly permitted on the Site; (g) accessing or attempting to access password protected, secured, or non-public areas of the Site; or (h) any use of the Site or the Site Materials other than for its intended purpose. Any use of the Site or the Site Materials other than as specifically authorized herein, without the prior written permission of Old Pueblo Poblano, is strictly prohibited and will terminate the licenses granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time, including without limitation your account and your access to this Site and/or any of the Services, without notice, in our sole and absolute discretion, and without liability at any time for any reason whatsoever.
5. Trademarks
All logos and slogans contained in the Site are trademarks of Old Pueblo Poblano its suppliers or licensors, or other third parties and may not be copied, imitated or used, in whole or in part, without the prior written permission of Company or the applicable trademark holder. You may not use any meta tags or any other “hidden text” utilizing “Old Pueblo Poblano” or any other name, trademark or product or service name of Old Pueblo Poblano without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Company and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, and supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us.
6. Hyperlinks
Except with the express prior written permission of Company, you agree that you will not create links from any website or webpage to any page within the Site. If such permission is granted, the origin of any link to the Site home page must be accompanied by a clear and prominent attribution indicating that the link is connected to the Site. By creating a link to the Site, you represent and agree that: (a) you will not employ any technology that results in the placement of content from the Site in an “iframe” and/or a reduced pop-up window and/or any other display mechanism which changes appearance of the Site from how it would appear if a user typed the URL in a typical browser line; (b) your site shall not display content or link to other websites that contain content that is illegal, obscene, indecent, disparaging, discriminating or otherwise offensive; (c) you have duly registered your domain name and possess all rights necessary to use the same; and (d) you shall not in any manner access, collect, store, disclose, transfer or use any information obtained or derived from a user’s access to or use of the Site. We reserve the right to revoke your permission to create such link at any time in its sole discretion and you agree to immediately cease using the link at any time that we so request.
Old Pueblo Poblano makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third-party websites accessible by hyperlink from the Site, or websites linking to the Site. Such sites are not under the control of Old Pueblo Poblano and we are not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes, or updates to such sites. The Company provides these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement, or adoption by the Company of any site or any information contained therein. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site.
7. Third-Party Content
We may make third-party information and other content available on or thorough the Site (the “Third-Party Content”) as a service to those interested in this information and we may provide information regarding or access to third-party products or services available on or through the Site (“Third-Party Products and Services”). Your business dealings or correspondence with such third-parties, and any terms, conditions, warranties, or representations associated therewith, are solely between you and such third party. Company does not control, endorse, or adopt any Third-Party Content or Third-Party Products, and makes no representations or warranties of any kind regarding third party content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that Company is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Users use such Third-Party Content contained therein at their own risk.
8. Third-Party Products and Services
The Services may also be located on third party websites or applications, via links, click-through advertising, or otherwise. Nothing contained in any of the Services is an offer or promise by the Company to sell a specific product for a specific price or that any advertiser will sell any product or service for any purpose or price or on any specific terms. Company makes no representation or warranty with respect to any Third-Party Products or Services. Further, Company neither adopts, endorses nor is responsible for the accuracy, completeness, sufficiency, veracity, timeliness or reliability of any Third-Party Products or Services or any information, communications, content, opinion, advice or statement concerning any Third-Party Products or Services.
With the sole exception of communications authored and initiated solely by Company, you acknowledge, understand and agree that we will not be responsible for, and you hereby release Company (including our affiliated companies and our respective officers, directors, agents, investors, subsidiaries, and employees) from, any and all loss, claims, demands, liability and damages (direct, indirect, special, punitive or consequential) of every kind and nature, known and unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected with your use of any Third-Party Products and Services and your reliance on any information or statements concerning such products and services.
9. Submissions
Certain interactive aspects of the Site and Services may be tools that provide information and customized information based on user-inputted data. These tools and any information generated by these tools are for general reference and informational purposes only, and are not intended to be definitive, comprehensive, or an offer of any kind. You hereby release Company (and our officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, liability and damages (direct, indirect, special, punitive or consequential) of every kind and nature, known and unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected with your use of or reliance upon such tools and resulting information.
You acknowledge and agree that any feedback, questions, comments, suggestions, ideas, or other information or materials regarding the Site or Old Pueblo Poblano that are provided by you in the form of email or other submission to Old Pueblo Poblano, or any postings on the Site, are non-confidential and shall become the sole property of Old Pueblo Poblano. Old Pueblo Poblano shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose without acknowledgement or compensation to you.
As part of the Services, you may (if enabled) receive push notifications, text messages, alerts, emails, or other types of messages directly sent to you (“Push Messages”). If you decide to enable Push Messages, you agree to receipt of communications via the Push Messages. You have control over the Push Messages settings and can opt in or out of these Push Messages through the Services (with the possible exception of infrequent, important service announcements and administrative messages about the Services). Please be aware that third party messaging fees may occur relating to these Push Messages, depending on the message plan you have with your wireless carrier. You will be required to provide us with your phone number during the registration process in order to use the Services, and by registering with the Site, you authorize us to send texts to your phone. Your use of the Services is also subject to your standard phone and/or internet fees for data, messaging and any other limits put in place by your carrier and you are responsible for any related fees.
10. Registered Users
Certain features of the Site are only available to our registered users, and to access those areas of the Site you may be required to go through a registration and log-in process to create one or more accounts. You may be required to provide personal and/or demographic information as part of the registration or log-in process.
You agree to provide true, accurate, current and complete information about yourself as part of any registration or log-in form or other account creation in connection with the Site and understand you must not impersonate any other person or entity in doing so. You also agree to keep such information (including your contact information) up to date and understand that we may rely on the contact information provided in your account if we should need to contact you.
11. Security and Services Modifications
You understand and agree that you are solely responsible for maintaining the confidentiality of any communications conducted through or in connection with the Site or the Services. You also agree that if you choose to create an account in connection with the Site you will not disclose your account password to anyone and that you will notify us immediately of any unauthorized use of your account. If you are aware of any unauthorized use of your account or if you have reason to believe that your account is no longer secure, you must promptly notify us. You are solely responsible for all activities occurring under your account, regardless of whether you know about them, and we are not liable for any loss or damage arising from your failure to protect your password or account information.
Although we are not obligated to monitor access to or use of the Site or Services, or to review or edit any aspect of the Site or Services, we have the right to do so for the purpose of operating the Site and Services, to ensure compliance with the Terms of Use, and to comply with applicable law or other legal requirements. We have the right to investigate violations of the Terms of Use or conduct that affects the Site or Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
We will make reasonable efforts to keep the Site and Services operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Site or Services, with or without notice, all without liability to you for any interruption, modification or discontinuation of the Site or Services or any function or feature thereof. You understand and agree that we have no obligation to maintain, support, upgrade or update the Site or Services or to provide all or any specific content through the Site or Services.
12. Terms Applicable to Your Purchase of Products
Any products or services you may use or purchase as a result of your access to the Site or Services are the products or services of third parties, and not of Company. So each such third party is solely responsible for any products or services it provides to you, including any representations or warranties regarding those products or services. We do not warrant the offerings of any third party or the content of any third party website to which you can link via the Site or Services. We do not assume any responsibility or liability for the actions, products or services, or content of any third party. We are not responsible for the acts or omissions of any third party or their failure to provide products or services, adhere to their own schedules or honor their contracts. You waive and release Company (including our affiliated companies and our respective officers, directors, agents, investors, subsidiaries, and employees) from any and all damages, claims, liabilities, and costs resulting from your purchase or use of any product or service of any third party.
In the event that you have a dispute with any third party, you agree to address such dispute directly with the third party in question, and you release Company (including our affiliated companies and our respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. Returns of, or refunds in connection with, any product or service purchased or ordered must be handled directly between you and the applicable third party.
13. Content Contained in the Site
The Site and all of its contents, including without limitation all information, text, messages, images, photos, illustrations, designs, icons, video clips, sounds, files, trademarks, copyrighted material, trade dress, software, specifications, catalogs, literature, technical information, advertisements and other content or materials on the Site (collectively, “Content”) is owned by Company and/or third parties with all rights reserved unless otherwise noted. You are strictly prohibited from downloading (other than page caching) modifying or making any other use of the Site or Content, except with express prior written consent of Company. You understand that all third-party Content posted on, transmitted through, or linked from the Site, is the sole responsibility of the third-party originator of such Content. The Site, including Content provided through the Site, is provided AS IS, and you agree that the use of and reliance on any Content is at your own risk, and that under no circumstances shall Company be liable for any Content or for any loss or damage of any kind incurred as a result of the use of any Content made available via the Services. You acknowledge that Company does not screen or approve third-party Content, and that Company shall have the right (but not the obligation) in its sole discretion to refuse, modify, or delete any Content that is available via the Site, for any reason.
14. Content You Provide
To the extent you post, upload, input, submit or otherwise transmit (collectively, “Transmit” or “Transmitting” as appropriate) Content on or through the Site, you agree to provide true, accurate and complete information and to refrain from impersonating or falsely representing your affiliation with any person or entity. You are entirely responsible for all Content you provide or otherwise make available via the Site. You also warrant and represent that you own or otherwise control all of the rights to such Content including, without limitation, all the rights necessary for you to Transmit such Content, and to transfer all rights and interests in such Content to the Site as provided below.
By Transmitting Content to the Site, you grant, and you represent and warrant that you have the unencumbered right to grant, to Company an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute the Content and to prepare derivative works of, or incorporate into other works, the Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing. Furthermore, by posting Content to any public area of the Site, you grant Company all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the Content on the Site by any party for any purpose.
You represent and agree not to post, upload to, transmit, distribute, store, create, or otherwise publish through the Site any of the following:
Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, deceptive, or misleading.
Content that would constitute, encourage, or provide instruction for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law.
Content that may infringe on any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party.
Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity.
Unsolicited promotions, political campaigning, advertising, or solicitations.
Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers.
Viruses, corrupted data or other harmful, disruptive, or destructive files.
Content which violates the terms of any Company guidelines, policies, or rules posted on the Site or otherwise provided to you; and Content that, in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose Company or its users to any harm or liability of any type.
Company takes no responsibility and assumes no liability for any Content posted, stored, or uploaded by you or any third-party, or for any loss or damage thereto, nor is Company liable for any mistakes defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter. Enforcement of the Content or conduct rules set forth in these Terms of Use is solely at Company’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our rights to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Site will not contain any content that is prohibited by such rules. As a provider of interactive services, Company is not liable for any statements, representations, or Content provided by its users in any public forum, blog, or other areas of the Site. Although Company has no obligation to do so, it reserves the right, and has absolute discretion, to remove, screen or edit any user-created Content posted or stored on the Site at any time and for any reason without notice, and you are solely responsibility for creating backup copies of and replacing any Content you post or store on the Site at your sole cost and expense. Any use of the Site in violation of the foregoing violates these Terms of Use and may result in, among other things, termination, or suspension of your rights to use the Site.
Except as otherwise provided, you retain ownership of all Content that you post on the Site. However, if you post Content to the Site, unless we indicate otherwise, you grant Company and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Content throughout the world in any manner or media, including without limitation in advertising and other communications in support of Company, without any right of compensation or attribution. You grant Company and its affiliates and sublicensees the right to use the name that you submit in connection with such Content, if they choose. You represent and warrant that (a) you own and control all of the rights to the Content that you post or you otherwise have the right to post such Content to the Site; (b) the Content is accurate and not misleading; and (c) use and posting of the Content you supply does not violate these Terms of Use and will not violate any rights of or cause injury to any person or entity.
We are always innovating, including researching and developing new ideas, business strategies, and ways to improve the Site and Services, and you are under no obligation to send us any of your ideas for the Company. If you do choose to send us any of your ideas for the Company, you understand and agree that by doing so, you are permanently and irrevocably assigning to us the right to use them, and you waive and release us from any claims that we have used your ideas without your permission, or that you are the owner of any such ideas.
15. Disclaimers
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF AND RELIANCE UPON ANY AND ALL OF THE SITE, SERVICES AND/OR CONTENT IS AT YOUR SOLE RISK AND IS MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH REGARD TO THE APPROPRIATENESS, ACCURACY, SUFFICIENCY, CORRECTNESS, VERACITY, VALUE, COMPLETENESS, OR TIMELINESS OF THE SITE, SERVICES AND/OR CONTENT. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AND AS TO THE ACCURACY OR RELAIBILITY OF THE INFORMATION, CONTENT, FORMS, OR OTHER MATERIALS ACCESSED THROUGH THE SITE. Old Pueblo Poblano DOES NOT REPRESENT OR WARRANT THAT THE SITE, THE MATERIALS, OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE.
Old Pueblo Poblano IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS, INCLDUING THOSE RELATING TO PRICING, TEXT OR PHOTOGRAPHY. WHILE Old Pueblo Poblano ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITE AND SERVICES SAFE, Old Pueblo Poblano CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE, THE SITE MATERIALS OR THE SERVER (S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFOR; YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
Old Pueblo Poblano IS ALSO NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES, ACTIVITIES, PROGRAMS, OR EVENTS LISTED ON THE SITE OR FOR THE CONDUCT OF ANY EVENT, ACTIVITY, OR PROGRAM ORGANZIERS OR OTHER USERS OF THE SITE.
Without limiting the foregoing, we make no warranty: (a) that the Site or Services will meet your requirements, (b) that the Site or Services will always be available, accessible, uninterrupted, timely, secure, accurate, complete and error-free, (c) that the Site or Services will operate without packet loss whether due to an outage or a period update, (d) regarding any connection to or transmission from the internet, or any quality of Service due to user installed routers or firewalls, or (e) regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of the Site or Services.
Old Pueblo Poblano reserves the right to change any and all content contained in the Site and any Services offered through the Site at any time without notice. Reference 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, or any affiliation therewith, by Old Pueblo Poblano.
16. Limitation of Liability
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE OR THE SERVICES, THE DELAY OR INABILITY TO ACCESS OR USE THE SITE OR SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY CONTENT, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE OR OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. ANY SERVICES OR CONTENT MADE AVAILABLE OR OBTAINED THROUGH THE USE OF THE SITE, AND ALL OTHER USE OF THE SITE, IS RECEIVED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS THEREFROM.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR SERVICES, OR WITH ANY OF THE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE SITE OR SERVICES EXCEED THE GREATER OF THE TOTAL AMOUNT YOU HAVE PAID TO COMPANY FOR USE OF THE SITE AND SERVICES OR ONE HUNDRED DOLLARS ($100).
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
17. Indemnification
You agree to defend, indemnify, and hold harmless Company, its independent contractors, service providers, consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to (a) any user Content you post, store, or otherwise transmit on or through the Site, (b) any act or omission relating to the Site or the user-created Content, including without limitation any actual or threatened suit, demand, or claim made against Company and/or its independent contractors, service providers, joint committee members, employees, directors or consultants, arising out of or relating to the user-created Content, (c) your violation of any third-party right, including without limitation any intellectual property or other proprietary right, (d) your use of and access to this Site or the Services found at this Site; (e) your violation of these Terms of Use, or (f) your violation of the rights of any third-party. The indemnification obligations under this section shall survive any termination or expiration of this Terms of Use or your use of this Site or the Services found at this Site.
18. Our Remedies; Applicable Law
You acknowledge that we may be irreparably damaged if the Terms of Use are not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of the Terms of Use by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of the Terms of Use.
The Terms of Use shall be treated as though they were executed and performed in Arizona, and shall be governed in all respects by the laws of the State of Arizona without regard to conflict of law provisions.
Accordingly, and in connection with the foregoing, you acknowledge and agree:
That any claim or legal action you may have or pursue against Company, or that Company may have or pursue against you, must be resolved by a court located in Tucson, Arizona, except as otherwise agreed by the parties, and To submit to the exclusive and personal jurisdiction of the courts located within Tucson, Arizona, for the purpose of litigating and pursuing all such claims or legal actions.
19. General Terms
The Terms of Use constitute the entire and exclusive understanding and agreement between you and the Company regarding the Site and Services. Unless otherwise specified herein (or in any other written agreement between you and Company) the Terms of Use supersede and replace any and all prior oral or written understandings or agreements between you and the Company regarding the Site and Services.
You may not assign or transfer the Terms of Use, by operation of law or otherwise, without Company’s prior written consent. Any attempt by you to assign or transfer the Terms of Use, without such consent, will be null. Company may freely assign or transfer the Terms of Use without restriction. Subject to the foregoing, the Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications we may provide under the Terms of Use, including those regarding modifications to the Terms of Use, can be given: (a) via email; or (b) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Company’s failure to enforce any right or provision of the Terms of Use will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Company. Except as expressly set forth in the Terms of Use, the exercise by either party of any of its remedies under the Terms of Use will be without prejudice to its other remedies under the Terms of Use or otherwise.
You expressly authorize us to comply with any and all lawful notices, subpoenas, court orders or warrants without prior notice to you.
To the extent that anything in, or associated with, the Site or Services is in conflict or inconsistent with the Terms of Use, the Terms of Use shall take precedence.
20. Legal Disputes
You and we agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Terms of Use, your use of or access to the Services will be resolved in accordance with the provisions set forth in this section (“Legal Disputes”). Please read this section (“Legal Disputes”) carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
Arbitration/Class Waiver/Opt-Out Clauses
You and we each agree to resolve exclusively through final and binding arbitration any and all disputes or claims that have arisen or may arise between you and us (including any affiliates, officers, directors, employees, and agents), whether or not such dispute or claim involves a third party, relating in any way to any aspect of our relationship or any contact between us, direct or indirect, or arising out of this or previous versions of the Terms of Use, your use of or access to our Services, or any products or services sold, offered, or purchased through our Services (“Dispute”).
You and we agree to submit the Dispute to a single arbitrator under the then-current Commercial Arbitration Rules of the American Arbitration Association (AAA), including when applicable the Optional Rules for Emergency Measures of Protection and the Consumer Arbitration Rules, or, by separate mutual agreement, at another arbitration institution. The AAA’s rules, information regarding initiating a claim, and a description of the arbitration process are available at org.
The location of the arbitration and the allocation of fees and costs for such arbitration shall be determined in accordance with the AAA rules. As an alternative, you or we may bring a claim in your local “small claims” court, if permitted by that small claims court’s rules.
The Federal Arbitration Act governs the interpretation and enforcement of this section (“Legal Disputes”) regarding our agreement to arbitrate any Dispute (“Agreement to Arbitrate”), and the arbitrability of the Dispute. The arbitrator will decide whether the Dispute can be arbitrated.
You and we agree that each of us may bring a Dispute against the other only on our own behalf, and not on behalf of a government official or other person or entity, or a class of persons or entities. You and we agree, if we are a party to the proceeding, not to participate in a class action, a class-wide arbitration, a claim brought in a private attorney general or representative capacity, or a consolidated claim involving another person’s use of the site or our services. You and we agree not to combine a claim that is subject to arbitration under the Terms of Use with a claim that is not eligible for arbitration under the Terms of Use. You and we agree to waive the right to a trial by jury for all disputes.
You may opt out of this Agreement to Arbitrate. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing, within 30 days of the date that you first became subject to this Agreement to Arbitrate, by U.S. mail delivered to: PO Box 78797 Atlanta, Georgia 30357. You must include: (1) your name and residence address; (2) the email address and/or mobile telephone number associated with your account; and (3) a clear statement that you want to opt out of this Agreement to Arbitrate.
If the prohibition against class actions and other claims brought on behalf of third parties contained in paragraph (c) above is found to be unenforceable, then all of paragraphs (a)-(f) of this section (“Legal Disputes”) will be null and void as to that Dispute.
This Agreement to Arbitrate will survive the termination of your relationship with us.
Unless you and we agree otherwise, if you opt out of the Agreement to Arbitrate, if the Agreement to Arbitrate is found by a court to be unenforceable, if your claim is not covered by the Agreement to Arbitrate, or if you neither are a resident of nor have a principal place of business in the US or Canada, you agree that any Dispute that has arisen, or may arise, between you and us must be resolved exclusively by a state or federal court located in Fulton County, Georgia. You and we agree to submit to the exclusive and personal jurisdiction of such courts for all purposes in connection with this Agreement to Arbitrate.
Notwithstanding any provision in the Terms of Use to the contrary, you and we agree that if we make a change to this Agreement to Arbitrate (other than a change to the notice address or the site link provided herein) in the future, that change shall not apply to a claim that was filed in a legal proceeding between you and us prior to the effective date of the change. The change shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen, or may arise, between you and us. We will notify you of a change to this Agreement to Arbitrate by posting the amended terms on our Services at least 30 days before the effective date of the change and/or by email.
21. Severability
If any provision of these Terms of Use shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.
22. General Terms
If you have any questions about the Terms of Use, the Site, or the Services, please contact us at: Old Pueblo Poblano oldpueblopoblano@gmail.com