Terms of Service
1.1. Effective Date. The effective date of this Agreement is August 7th, 2017.
1.2. Agreement. Welcome to Lost West Media! Lost West Media, LLC (“Lost West Media” or “Company”) recommends that you read the following terms and conditions carefully. By accessing or using the Lost West Media website, the Lost West Media Service, including any software applications made available by Lost West Media (together, the “Website” or “Service”), however accessed or used, you agree to be bound by these terms (the “Terms of Service” or the “Agreement”). By using the Service, you agree to be bound by this Agreement, constituting a legally binding agreement between Lost West Media and you concerning your use of the Service. We encourage you to print the Agreement or save it to your computer for reference.
1.5. Arbitration and Remedies. These terms contain a mandatory arbitration of disputes provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limits the remedies available to you in the event of a dispute. See Section 17 (Dispute Resolution) for full details.
4.1. By accessing and/or using the Service, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law.
4.2. Corporate Use. If you are using the Service on behalf of a company, you represent and warrant that you are authorized to act and enter into contracts on behalf of that company.
5. License. Subject to your compliance with these Terms of Service, Company grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the Company websites (located at the following URLs: https://lostwestmedia.com), and to use the Service. No part of the Service, including the Website, may be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior express written consent of Company. All rights not expressly granted in this Agreement are reserved by Company. Without limitation, this Agreement grants you no rights to the intellectual property of Company or any other party, except as expressly stated in this Agreement. The license granted in this section is conditioned on your compliance with this Agreement. Your rights under this section will immediately terminate if, in the sole judgment of Company, you have breached any provision of this Agreement.
6. No Reliance on Third Party Content.
6.1. Opinions, advice, statements, or other information made available through the Service by third parties are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Company does not: (i) guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Service; or (ii) adopt, endorse, or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by a third party through the Service. Under no circumstances will Company be responsible for any loss or damage resulting from your reliance on information or other content posted through the Service transmitted to or by any third party.
7. Assumption of Risk; Release. You knowingly and freely assume all risk when using the Service. You, on behalf of yourself, your personal representatives, and your heirs, voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Lost West Media, LLC and its stockholders, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns (collectively, the “Company Parties”) from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Service.
8. Consent to Receive Electronic Communications from Company. By registering for the Service and providing your name, email, postal or residential address, and/or phone number through the Service, you expressly consent to receive electronic and other communications from Company, over the short term and periodically, including email communications. These communications will be about the Service, new product offers, promotions, and other matters. You may opt out of receiving electronic communications at any time by following the unsubscribe instructions contained in each communication, or by sending an email to firstname.lastname@example.org. You agree that these electronic communications satisfy any legal requirements that communications or notices to you be in writing.
9. Third Party Websites. The Service is linked with the websites of third parties (“Third Party Websites”), some of whom may have established relationships with Company and some of whom may not. Company does not have control over the content and performance of Third Party Websites. Company has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third Party Websites. Accordingly, Company does not represent, warrant, or endorse any Third Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third Party Websites. Company disclaims, and you agree to assume, all responsibility and liability for any damages or other harm, whether to you or to third parties, resulting from your use of Third Party Websites.
10. Your Responsibility for Defamatory Comments.
10.1. If you post defamatory statements to the Service, persons harmed by those statements may sue you and seek damages. Under Section 230 of the Communications Decency Act of 1996 (47 U.S.C. Section 230, available at https://www.law.cornell.edu/uscode/text/47/230), Company cannot be held liable for your statements that are defamatory or otherwise legally actionable.
10.2. If you raise or file any claim against Company for conduct that a Court of Competent Jurisdiction later finds to constitute an “exercise of a publisher’s traditional editorial functions,” or the legal equivalent, you agree to fully and immediately compensate Company for all losses, liability, damages, costs, and expenses, including without limitation all attorneys’ fees and expenses in defending the action and resolving the matter. If you fail to compensate Company for any such claim, you agree and authorize Company to report your Personal Information, including without limitation your unpaid claim, to consumer credit reporting services, collection agencies, and others.
12. Prohibited Uses. Company imposes certain restrictions on your use of the Service. Any violation of this section may subject you to civil and/or criminal liability. The following are expressly prohibited:
12.1. harassing or stalking any person, or contacting any person who has requested not to be contacted
12.2. providing false, misleading, or inaccurate information to Company or to any other person in connection with the Service
12.3. impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity
12.4. modifying any advertisement posted through the Service
12.5. harvesting or otherwise collecting information about users, including email addresses and phone numbers
12.6. without express written permission from Company, using or attempting to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Service for any use, including without limitation use on Third Party Websites
12.7. accessing content or data not intended for you, or logging into a server or account that you are not authorized to access
12.8. attempting to probe, scan, or test the vulnerability of the Service, or any associated system or network, or breaching security or authentication measures without proper authorization
12.9. interfering or attempting to interfere with the use of the Service by any other user, computer, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities
12.10. using the Service to send unsolicited email, including without limitation promotions or advertisements for products or services
12.11. forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Service (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers)
12.12. while using the Service, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising
12.13. attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Service, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable
12.14. creating additional accounts to promote your (or another’s) business, or causing others to do so
12.15. paying anyone for interactions on the Service
13. Intellectual Property.
13.1. Compliance with Law.
13.1.1. You represent and warrant that, when using the Service, you will obey all applicable laws and respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to copyright and other intellectual property laws. You agree not to upload, post, transmit, display, perform, or distribute any content, information, or other materials in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
13.2. Trademarks. Lost West Media and the Lost West Media logo (collectively, the “Company Marks”) are trademarks or registered trademarks of Company. Other trademarks, service marks, graphics, logos, and domain names appearing anywhere on, through, or in connection with the Service may be the trademarks of third parties. Neither your use of the Service nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company Marks or any third-party trademarks, service marks, graphics, logos, or domain names. You agree that any goodwill in the Company Marks generated as a result of your use of the Service will inure to the benefit of Company, and you agree to assign, and do assign, all such goodwill to Company. You shall not at any time, nor shall you assist others to, challenge Company’s right, title, or interest in, or the validity of, the Company Marks.
13.3. Copyrighted Materials; Copyright Notice. All content and other materials available through the Service, including without limitation the Lost West Media logo, design, text, graphics, and other files, and their selection, arrangement, and organization, are either owned by Company or are the property of Company’s licensors and suppliers. Except as explicitly provided, neither your use of the Service nor this Agreement grant you any right, title, or interest in any such materials.
13.4. DMCA Policy.
13.4.1. As Company asks others to respect its intellectual property rights, Company respects the intellectual property rights of others. Company follows the notice and takedown procedures in the Digital Millennium Copyright Act (“DMCA”).
13.4.2. If you believe content located on or linked to by the Service violates your copyright, please immediately notify Company by emailed DMCA takedown notice (“Infringement Notice”), providing the information described below. If Company takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party who made the content available at the most recent email address that party provided to Company.
13.4.3. Under the DMCA, you may be held liable for damages based on material misrepresentations in your Infringement Notice. You must also make a good-faith evaluation of whether the use of your content is a fair use; fair uses are not infringing. (See 17 U.S.C. Section 107, available at https://www.law.cornell.edu/uscode/text/17/107, and Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sep. 14, 2015), available at https://www.courtlistener.com/opinion/2937139/stephanie-lenz-v-universal-music-corp/.) If you are not sure if content located on or linked to by the Service infringes your copyright, you should first contact an attorney.
13.4.4. The DMCA requires that all Infringement Notices must include the following:
18.104.22.168. A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
22.214.171.124. An identification of the copyright claimed to have been infringed;
126.96.36.199. A description of the nature and location of the material that you claim to infringe your copyright, in sufficient detail to permit Company to find and positively identify that material;
188.8.131.52. Your name, address, telephone number, and email address; and
184.108.40.206. A statement by you: (i) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.
13.4.5. Infringement Notices should be sent to email@example.com with the subject line “DMCA Notice: (INSERT YOUR NAME OR YOUR COMPANY’S NAME)”.
13.4.6. Company will respond to all DMCA-compliant Infringement Notices, including, as required or appropriate, by removing the offending material or disabling all links to the offending material.
13.4.7. Disclosure. All received Infringement Notices may be posted in full to the Lumen database (https://lumendatabase.org/), previously known as the Chilling Effects Clearinghouse.
14. Disclaimers; Limitation of Liability.
14.1. No Warranties. Company, on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Service, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Company nor its licensors or suppliers warrants that the Service will meet your requirements, or that the operation of the Service will be uninterrupted or error-free. Company disclaims all implied liability for damages arising out of the furnishing of the Service pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects arising out of the failure to the furnish the Service, whether caused by acts of commission or omission, or any other damage occurring. Company shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of Company, Company Parties, or Lost West Media users, or their agents or representatives.
14.2. Your Responsibility for Loss or Damage; Backup of Data.
14.2.1. You agree that your use of the Service is at your sole risk. You will not hold Company or its licensors and suppliers, as applicable, responsible for any loss or damage that results from your access to and/or use of the Service, including without limitation any loss or damage to any of your computers, mobile devices, including without limitations tablets and/or smartphones, or data. The Service may contain bugs, errors, problems, or other limitations.
14.2.2. Importantly, you acknowledge that a catastrophic disk failure or other similar event could result in the loss of all of the data related to your account. You agree and understand that it is your responsibility to backup your data to your personal computer or external storage device and to ensure such backups are secure.
14.3. Limitation of Liability. In no event shall Company or its licensors or suppliers be liable to you for any claims arising from your use with the Service, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to Company or its licensors and suppliers arising out of or in connection with your use of the Service. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Company and you. The Service would not be provided without such limitations.
14.4. Application of Disclaimers. The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Company or between you and any of Company’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Company’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Service or otherwise shall alter any of the disclaimers or limitations stated in this section.
15. Your Representations and Warranties. You represent and warrant that your use of the Service will be in accordance with this Agreement and any other Company policies, and with any applicable laws or regulations.
16. Indemnity by You.
16.1. Without limiting any indemnification provision of this Agreement, you (the “Indemnitor”) agree to defend, indemnify, and hold harmless Company and the Company Parties (collectively, the “Indemnitees”) from and against any and all Claims (as defined in Section 17 (Dispute Resolution)), including but not limited to legal costs and fees, and providing sole and exclusive control of the defense of any action to Company, including the choice of legal counsel and all related settlement negotiations, arising out of or relating to: (i) the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Company or any of the Indemnitees of information or other data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
16.2. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim as to which you are required to defend, indemnify, or hold harmless any, each, and/or all Indemnitees. You may not settle any Claim without the prior written consent of the concerned Company Parties.
16.3. Without limitation, the Indemnitor also agrees to compensate Company for any and all lost revenues, future lost profits, reasonable search costs, and any other reasonable expenses resulting from any Indemnitor violation of Section 12 (Prohibited Uses), including without limitation any suspension of affiliate accounts or affiliate payment attributable to fraudulent efforts to manipulate or otherwise modify reported impressions generated by the Company Parties under any affiliate advertising agreement.
17. Dispute Resolution.
17.1. Additional Definitions for Dispute Resolution.
17.1.1. “AAA” means the American Arbitration Association.
17.1.2. “Claim” means any claims, actions, demands, causes of action, and other proceedings arising out of or relating to: (i) the relationship between you and Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; (ii) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (iii) your access to or use of the Service; (iv) your provision to Company or any of the Indemnitees of information or other data; (v) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (vi) your violation or alleged violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
17.1.3. “Court of Competent Jurisdiction” means any federal or state court that has jurisdiction over the subject matter, and that is located in the State of California.
17.1.4. “Lawsuit” means a legal proceeding against a Party related to this Agreement.
17.2. Binding Arbitration. Any Claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the AAA in accordance with its Commercial Arbitration Rules, which are available at the AAA website https://www.adr.org/aaa/faces/rules, or by calling the AAA at 1-800-778-7879. Judgment on the arbitrator’s award may be entered in any Court of Competent Jurisdiction. Claims shall be heard by a single arbitrator. The place of arbitration shall be Oakland, California. The arbitration shall be governed by the laws of California. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in-person hearings. The prevailing party shall be entitled to an award of reasonable attorney fees. The award of the arbitrator shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties.
17.3. No Joinder of Claims. You and Company agree that any arbitration shall be limited to each Claim individually. You and Company agree that each may only bring claims against the other in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. If this specific provision is found to be unenforceable by a Court of Competent Jurisdiction, the Claim will still be finally and exclusively resolved by binding arbitration upon the election of either party. Any election to arbitrate by one party shall be final and binding on the other. No arbitration shall be joined with any other arbitration. There is no right for any Claim to be arbitrated on a class-action basis, or to employ class action procedures. There is no right of authority for any Claim to be brought in a purported representative capacity on behalf of either the general public or any other individuals.
17.4. Judicial Remedies in Aid of Arbitration or Equitable Relief. As exceptions to Section 17.2 (Binding Arbitration), any Party may seek, in a Court of Competent Jurisdiction, provisional remedies in aid of arbitration (including orders to stay a court action, to compel arbitration, or to confirm an arbitral award) or equitable relief (including a temporary restraining order, preliminary injunction, or other interim or conservatory relief).
17.5. Frivolous Claims. If the arbitrator or a Court of Competent Jurisdiction finds that the substance of a Claim or the relief sought is frivolous, or that a Claim is brought for an improper purpose (as measured by the standards of Rule 11(b) of the Federal Rules of Civil Procedure and relate case law), then the party bringing that Claim shall pay all arbitrator fees, attorneys’ fees, and costs related to that Claim.
18.1. By Company. Without limiting any other provision of this Agreement, Company reserves the right to, in Company’s sole discretion and without notice or liability, deny use of the Service to any person for any reason or for no reason at all, including without limitation for any breach or suspected breach of any representation, warranty, or covenant contained in this Agreement, or of any applicable law or regulation.
18.2. Automatic Termination Upon Breach by You. This Agreement shall automatically terminate if you breach any of this Agreement’s representations, warranties, or covenants. This termination is automatic, and does not require any action by Company.
18.3. By You. You may terminate this Agreement and your rights under it at any time, for any or no reason at all, by providing to Company notice of your intention to do so, in the manner required by Section 19 (Notices).
18.4. Effect of Termination.
18.4.1. Any termination of this Agreement automatically terminates all rights and licenses granted to you under this Agreement, including all rights to use the Service. Upon termination, Company may, but has no obligation to, in Company’s sole discretion, rescind any services and/or delete from Company’s systems all your Personal Information and any other files or information that you made available to Company or that otherwise relate to your use of the Service. Upon termination, you shall stop any use of the Service.
18.4.2. After termination, Company reserves the right to exercise whatever means it deems necessary to prevent your unauthorized use of the Service, including without limitation technological barriers such as IP blocking and direct contact with your Internet Service Provider.
18.5. Legal Action. If Company takes legal action against you in connection with any actual or suspected breach of this Agreement, Company will be entitled to recover from you as part of such legal action, and you agree to pay, all reasonable costs and attorneys’ fees. The Company Parties will have no legal obligation or other liability to you or to any third party arising out of or relating to any termination of this Agreement.
19. Notices. All notices required or permitted to be given under this Agreement must be in writing.
19.1. Company shall give any notice by email sent to the most recent email address, if any, provided by the intended recipient to Company. You agree that any notice received from Company electronically satisfies any legal requirement that such notice be in writing.
19.2. You bear the sole responsibility of ensuring that your email address on file with Company is accurate and current, and notice to you shall be deemed effective upon the sending by Company of an email to that address.
19.3. You shall give any notice to Company by email to firstname.lastname@example.org.
20.1. Entire Agreement. This Agreement constitutes the entire agreement between Company and you concerning your use of the Service.
20.2. Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, that decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
20.3. Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of Company, or by the unilateral amendment of this Agreement by Company along with the posting by Company of that amended version.
20.4. No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
20.5. Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of Company. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
20.6. Independent Contractors. You and Company are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
20.7. No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties; Company’s licensors and suppliers (to the extent expressly stated in this Agreement); and to the extent stated in the following Sections: Section 6 (No Reliance on Third Party Content), Section 9 (Third Party Websites), Section 14.4 (Application of Disclaimers).
20.8. Injunctive Relief. You acknowledge and agree that any actual or threatened breach of this Agreement or infringement of proprietary or other third-party rights by you would cause irreparable injury to Company and Company’s licensors and suppliers, and would therefore entitle Company or Company’s licensors or suppliers, as the case may be, to injunctive relief.
20.9. Interpretation. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
20.10. Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.