Last updated: September 17, 2019
We here at ICON Creative Agency (hereinafter, “we,” “us,” “our,” “ourselves,” or “ICON”) are thrilled you are here!
Through the Sites, you may access to a variety of resources and content. These may include: (a) access to our software, if any, incorporated into and/or through our Sites (“Software”); (b) any content uploaded to, on or through the Sites, including but not limited to data, messages, text, images, photographs, graphics, audio and video (collectively, “Content”); (c) any systems used in connection with the Sites to upload, download, share, email, post, publish, transmit or otherwise access or make available Content, including, without limitation, discussion groups, chat areas, bulletin boards, blogs, etc. (“Systems”); and (d) any other services that we provide and that are used in connection with the Sites (“Site Services”). Collectively, Software, Content, Systems and Site Services shall be referred to hereinafter as “Services”.
You are responsible for your use of the Sites and Services, and for any information you provide to, on or through the Sites and/or Services, or any par thereof. You are also responsible for any consequences resulting indirectly or directly from your use of the Sites and/or Services, or any part thereof. In connection with your use of the Sites and/or Services, or any part thereof, you acknowledge and agree that you shall not:
a. copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information obtained through the Sites and/or Services, or any part thereof;
b. access the Sites and/or Services, or any part thereof, by any means other than through the standard industry-accepted or the provided interfaces;
c. transmit any User Material (as defined in Section 9 below) and/or make any Posts (as defined in Section 9 below) or otherwise use the Sites and/or Services in any way that: is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; may invade another’s right of privacy or publicity; is sexually explicit (e.g., pornography) or proposes a transaction of a sexual nature; exploits minors; depicts animal cruelty or extreme violence towards animals; is hateful, or discriminatory or incites hatred against any individual or group; promotes or supports terror or hate groups; or includes an Unsuitable Material (as defined in Section 9 below);
d. impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with such a person or entity;
e. create an Account for someone else unless you have their express permission;
f. attempt to create Account or access or collect information in unauthorized ways;
g. anything unlawful, misleading, or fraudulent or for an illegal or unauthorized purpose, including, without limitation, providing false or misleading claims about vaccination safety; promoting fraudulent or dubious business schemes or proposes an unlawful transaction; or provides instructions on how to assemble explosive/incendiary devices or homemade/improvised firearms;
h. attempt to buy, sell, or transfer any aspect of your Account (including your username) or solicit, collect, or use login credentials or badges of other users;
i. post or transmit any User Material and/or make any Posts that contain a virus or corrupted data, use the Sites and/or Services, or any part thereof, in any manner that could damage, disable, overburden or impair our servers or networks, or interfere with any other user’s use and enjoyment of the Sites and/or Services, or any part thereof;
j. delete any author attributions, legal notices or proprietary designations or labels associated with any User Material that you upload to, on or through the Sites and/or Services, or any part thereof;
k. violate any applicable local, state, national or international law, including, but not limited to, uploading or transmitting any User Material, Posts or other materials that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
m. violate the rights of others, including patent, trademark, trade secret, copyright, privacy, publicity, or other proprietary rights;
n. use technology or other means to access, index, frame or link to the Sites and/or Services (including the Content) that is not authorized by ICON (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of the Services);
o. access the Sites and/or Services (including the Content) through any automated means, including “robots,” “spiders,” or “offline readers” (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices – but not caches or archives – of the Sites and/or Services and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content;
p. introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
q. damage, disable, overburden, impair, or gain unauthorized access to the Sites and/or Services, including ICON’s servers, computer network, or user accounts;
r. removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Sites and/or Services (including the Content);
s. use the Sites and/or Services to advertise or promote services that are not expressly approved in advance in writing by ICON;
u. encourage conduct that would constitute a criminal offense or give rise to civil liability;
v. interferes with any other party’s use and enjoyment of the Sites and/or Services;
x. attempt to do any of the foregoing.
2.Access to Services; Accounts
Compatible Devices. In order to access and/or utilize the Sites and/or Services, you will need to use a computer, mobile device, streaming media player, or other device that meets the system and compatibility requirements that we establish from time to time (each, a “Compatible Device”). Features and functionalities that we make available through the Sites and/or Services may differ by Compatible Device and the terms of your Subscription. For a current list of Compatible Devices, please contact us – please see Section 32 (“Contact Us”) below.
3.Age Restriction – Children’s Privacy
We are committed to protecting the privacy of children. You should be aware that the Sites and Services are not intended or designed to attract children under the age of 13. We do not collect personally identifiable information from any person we actually know is a child under the age of 13.
You must be at least 18 years old to create an Account and/or use the Sites and/or Services. The Sites and Services, and every part thereof, is intended for adults only and is not intended for any children under the age of 18. We do not knowingly allow anyone under the age of 18 to create Accounts that allow access to the secured features of the Sites and/or Services.
We may charge fees associated with certain aspects of the Sites and/or Services, including, without limitation, for memberships, subscriptions or the download of apps, products, services and/or additional features. Such products or services, if any, will be made available for purchase on specified pages of the Sites, or otherwise as indicated on or through the Sites and/or Services. In the event of any fee changes by us, we will provide you with commercially reasonable notice of such charge.
When you provide credit card information for a Purchase, you represent and warrant that: (i) you are the authorized user of the credit card that is used for the Purchase; (ii) you have the legal right to use any credit card(s) or other payment method(s) in connection with any such Purchase; (iii) the information you supply to us is true, correct and complete; and (iv) you are expressly agreeing that we are authorized to charge you for such Purchase.
We reserve the right to refuse or cancel your order at any time for reasons including but not limited to: product or service availability, errors in the description or price of the product or service, error in your order or other reasons.
We reserve the right to refuse or cancel your order if fraud or an unauthorized or illegal transaction is suspected.
We assume no liability for purchaser error, trial versions, software purchased for the wrong telephone, device or platform, promotion codes or discounts not provided at the time of purchase, or any purchased item (“Purchaser Errors”). We will not be liable for any errors on billing statements issued to you by your carrier. You accept full responsibility for confirming that the phone or other device manufacturer, phone or other device model, and carrier are supported and that the phone or other device is compatible to the products or services purchased, downloaded or otherwise obtained by you through the Sites and/or Services. Although we will make commercially reasonable efforts to help you obtain the proper software for your telephone, device or platform, we will not be liable or responsible for any Purchaser Errors.
For some Purchases, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Purchase. Check with your credit card or other payment method (“Payment Method”) service provider for details.
Purchases may be subject to additional terms of purchase and/or policies that we provide on or through our Sites and/or Services (“Purchase Terms”).
Shipping and Handling. Any Purchase that requires shipping of a product shall be subject to Icon’s then current shipping and handling policy as well as any shipping and handling terms and/or conditions included in the Purchase Terms.
No Returns. In no event will we be liable for any defects or other problems associated with downloads or Purchases on or through the Sites and/or Services. Notwithstanding anything to the contrary herein, we accept ABSOLUTELY NO RETURNS on software downloads and/or Purchases. Please read the system requirements very carefully before making any software downloads or Purchases.
Taxes. It is your sole responsibility to determine whether, and to what extent, any taxes apply to any transactions you conduct through the Site and/or Services, and to withhold, collect, report and remit the correct amounts of taxes to the appropriate tax authorities. Your transaction history is available through your Account. In accordance with applicable law, ICON may collect sales tax on orders shipping within or to certain jurisdictions, including, without limitation, the following states: California, Ohio, Massachusetts and Virginia. ICON is not responsible for additional taxes and tariffs on international shipments.
Unpaid Amounts. It is important that you honor the payment obligations to which you agree for your Purchases. Accordingly, we reserve the right, in our sole discretion, to retry billing your Payment Method after failed attempts (e.g., if your Payment Method is rejected). We also reserve the right to pursue any amounts you fail to pay in connection with your Purchases. You will remain liable for all such amounts and all costs incurred in connection with the collection of these amounts, including, without limitation, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
International Orders. All international customers must be aware of the customs and importation laws for their respective country. Furthermore, all duties, taxes, and VAT fees are not covered by us and our customers are responsible for these payments. ICON is not responsible for any packages that are seized or stopped by the authorities, or any fees that are required for international duties, purchases and/or shipments. In other words, as a consumer who chooses to purchase and have products shipped to a country outside of the United States, you are taking responsibility for your purchase, and acknowledging that you are aware of the laws pertaining to such shipments. Please contact your local authorities for more rules and regulations in regards to the purchase of products shipped to a county outside the United States.
6.Availability, Errors and Inaccuracies
We are constantly updating product and service offerings on the Sites and Services. We may experience delays in updating information on the Sites and/or Services and in our advertising on other web sites. The information found on the Sites and/or Services may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Sites and/or Services and we cannot guarantee the accuracy or completeness of any information found on the Sites and/or Services.
We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.
7.Contests, Sweepstakes and Promotions
8.Social Networking and Other Third-Party Sites and Services
ICON has no control over, and assumes no responsibility for the content, privacy policies, or practices of any such Social Networks. We do not warrant the offerings of any of such Social Networks or the entities/individuals that own or operate them. YOU BEAR ALL RISK ASSOCIATED WITH YOUR ACCESS TO, AND USE OF, SUCH SOCIAL NETWORKS.
9.User Material and Posts
As part of the Services, Users may have an opportunity to publish, transmit, submit, or otherwise post (collectively, “Post”) reviews, comments, or other materials (collectively, “User Material”) on or through the Sites. In order to keep the Sites and Services enjoyable for all of our Users, you must adhere to the rules below, as well as additional rules applicable to any ICON-hosted site.
You must be, or have first obtained permission from, the rightful owner of any User Material you Post. By Posting or otherwise submitting User Material, you represent and warrant that you own the User Material or otherwise have the right to grant ICON the license provided below. You also represent and warrant that the Posting of your User Material does not violate any right of any party, including, without limitation, privacy rights, publicity rights, and intellectual property rights. In addition, you agree to pay for all royalties, fees, and other payments owed to any party by reason of your Posting User Material. ICON will remove all User Material if we are properly notified that such User Material infringes on another person’s rights. You acknowledge that ICON does not guarantee any confidentiality with respect to any User Material.
“Unsuitable Material” includes reviews, comments, or other materials that: (i) contain content that is unlawful, infringing, pornographic, obscene, defamatory, libelous, threatening, harassing, vulgar, indecent, profane, hateful, racially or ethnically offensive, encourages criminal conduct, gives rise to civil liability, violates any law, rule, or regulation, infringes any right of any third party including intellectual property rights, or is otherwise inappropriate or objectionable to ICON (in ICON’s sole discretion), or (ii) links to infringing or unauthorized content.
License to ICON. By Posting User Material or otherwise providing User Material (including, without limitation, any User Material provided for Projects) to ICON, you are not forfeiting any ownership rights in such material to ICON. After Posting your User Material or otherwise providing such User Material to ICON, you continue to retain all of the same ownership rights you had prior to Posting or providing of such User Material. By Posting your User Material or otherwise providing your User Material to ICON, you grant ICON a limited license to use, display, reproduce, distribute, modify, delete from, add to, prepare derivative works of, publicly perform, and publish such User Material through the Sites and Services and on other platforms and services worldwide in perpetuity, in any media formats and any media channels now known or hereinafter created. Furthermore, you hereby grant ICON a limited license to use, display, reproduce, distribute, modify, delete from, add to, prepare derivative works of, publicly perform, and publish the Work Product through the Sites and Services and on other platforms and services worldwide in perpetuity, in any media formats and any media channels now known or hereinafter created. Unless otherwise expressly agreed by you and ICON in writing, the license you grant to ICON hereunder is non-exclusive (meaning you are not prohibited by us from licensing your User Material or Work Product to anyone else in addition to ICON), fully-paid, royalty-free (meaning that ICON is not required to pay you for the use of your User Material and/or any Work Product), and sublicensable (so that ICON is able to use its affiliates, subcontractors, and other partners, such as internet content delivery networks, to provide the Services).
Third Party Posts. Despite these restrictions, please be aware that some material provided by Users may be objectionable, unlawful, inaccurate, or inappropriate. ICON does not endorse any User Material, and User Material that is Posted does not reflect the opinions or policies of ICON. We reserve the right, but have no obligation, to monitor User Material and to restrict or remove User Material that we determine, in our sole discretion, is inappropriate or for any other business reason, as permitted by law. In no event does ICON assume any responsibility or liability whatsoever for any User Material, and you agree to waive any legal or equitable rights or remedies you may have against ICON with respect to such User Material. You can help us tremendously by notifying us of any inappropriate User Material you find by emailing email@example.com (subject line: “Inappropriate User Material”).
Unsolicited Submissions. It is ICON’s policy not to accept unsolicited submissions, including scripts, story lines, articles, fan fiction, characters, drawings, information, suggestions, ideas, or concepts. ICON’s policy is to delete any such submission without reading it. Therefore, any similarity between an unsolicited submission and any elements in any ICON creative work, including a film, series, story, title, or concept, would be purely coincidental.
Content Subjectivity. The Content, Posts and/or User Material may elicit varying reactions among different people. You may come across Content, Posts and/or User Material that you find offensive, indecent, explicit or objectionable. Also, the types, genres, categories, and descriptions of Content, Posts and User Material are provided as suggestions to help with navigation, and ICON does not guarantee that you will agree with them. You acknowledge these risks.
10.Accounts and Password Security
When you create an Account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. You further agree to maintain and promptly update your registration information to keep it true, accurate, current and complete. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your Account on the Sites.
As a registered User, you must choose a unique username and password. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.
You are responsible for maintaining the confidentiality of your Account and password, including, but not limited to, the restriction of access to your computer and/or Account, and maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), API keys or any other codes that you use to access the Sites and/or Services. Any loss or compromise of the foregoing information and/or your personal information may result in unauthorized access to your Account by third-parties and the loss or theft of any associated accounts, including your linked bank account(s) and credit card(s). You are responsible for keeping your email address and telephone number up to date in your Account profile in order to receive any notices or alerts that we may send you. We assume no responsibility for any loss that you may sustain due to compromise of Account login credentials due to no fault of ICON and/or failure to follow or act on any notices or alerts that we may send to you. In the event you believe your Account information has been compromised, contact us immediately – please see Section 32 (“Contact Us”) below.
You are solely responsible for the activities of anyone accessing the Sites and/or Services using your password and/or Account, even if the activities were not authorized by you. You agree to accept responsibility for any and all activities or actions that occur under your Account and/or password, whether your password is with our Sites and/or Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your Account and/or any breach of security, unauthorized use, loss or theft of your user name, password and/or Payment Method. In addition, if you believe or suspect your Account, user name, password and/or Payment Method have been compromised, you must promptly change your user name, password and/or Payment Method, as the case may be, using the functionality provided on or through the Sites and/or Services.
We reserve the right to refuse service, terminate Accounts, remove or edit content, or cancel orders in our sole discretion.
We have no way of knowing and will not be responsible or liable for any access to the Sites and/or Services, or any part thereof, that is achieved through improper means. In addition, individuals using our Sites and/or Services, or any part thereof, must understand that the Internet is inherently insecure and no website operator can guarantee that a website is secure. We do not warrant that the Sites or Services, or any part thereof, are “hackerproof.” You are solely responsible for maintaining the confidentiality of any user name and password you use to access the Sites and/or Services and are fully responsible for all activities that occur under your password or Account. You agree (i) to notify us immediately of any unauthorized use of your password or any other breach of security and (ii) to ensure that you log out of your Account at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to comply with this provision.
12.Mobile Website; Mobile Application
Some of our Sites and/or Services may be made available in a mobile-friendly format, as well (our “Mobile Site”). All mobile phones that have Internet access can make use of the Mobile Site, if any. Users with mobile phones that have this access also have the option to view the full html website that is available on your computer. Prices for all products and services, including any special pricing and/or promotions, exclude all applicable taxes and telecommunication charges, unless otherwise indicated. To the extent permissible by law, you agree to be responsible for any such applicable taxes and telecommunication charges.
The following additional terms and conditions apply with respect to any Mobile Application that ICON provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
The following additional terms and conditions apply with respect to any Mobile Application that the Company provides to you designed for use on an Android-powered mobile device (an “Android App”):
In addition to the foregoing, you further represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
IN NO EVENT WILL ICON BE RESPONSIBLE FOR ANY TELECOMMUNICATION CHARGES ASSOCIATED WITH USE OF ANY OF THE SITE AND/OR SERVICES, INCLUDING, WITHOUT LIMITATION, A MOBILE SITE AND/OR MOBILE APPLICATION.
Our Sites and/or Services may contain or provide links to third party websites or resources and/or access to advertisements, contact, materials, products or services of third parties, including, without limitation, users, advertisers, affiliates and sponsors of the Sites and/or Services as well as third-party service providers running Promotions and Social Networks (collectively, “Third-Party Sites”). Such Third-Party Sites are not owned, endorsed or controlled by ICON. The inclusion of any link or access does not imply an endorsement by us of the Third-Party Sites.
ICON is not responsible in any manner for any Third-Party Sites provided on or through the Sites and/or Services or for any changes or updates to such Third-Party Sites. ICON has no control over, and assumes no responsibility for the content, privacy policies, or practices of any such Third-Party Sites, even if such Third-Party Site(s) is operated by a company affiliated or otherwise connected with ICON. We do not endorse or warrant the offerings of any of these Third-Party Sites or the entities/individuals that own or operate them. By using the Sites and/or Services, you acknowledge and agree that ICON is not responsible or liable to you for any content or other materials hosted and served from any website or destination other than the Sites.
We strongly advise you to read the terms and conditions and privacy policies of any Third-Party Sites or services that you visit.
15.Copyright Policy; Digital Millennium Copyright Act (“DMCA”)
ICON respects the intellectual property rights of others and expect Users of the Sites and/or Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your User Material has been copied in a way that constitutes copyright infringement, you must contact us with the following information:
a. a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
b. identification of the copyrighted work claimed to have been infringed;
c. identification of the User 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 User Material;
d. your contact information, including your address, telephone number, and an email address;
e. a statement by you that you have a good faith belief that use of the User Material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
f. a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
For notice of claims of copyright or trademark infringement on the Sites and/or Services, please contact us – please see Section 32 (“Contact Us”) below.
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to ICON designated agent that includes all of the following information:
a. Your physical or electronic signature;
b. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
c. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
d. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which the Company may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in our sole discretion, to terminate the Account or access of any User of our Sites and/or Service who is the subject or repeated DMCA or other infringement notifications.
Notwithstanding the foregoing or anything herein to the contrary, ICON reserves the right to review the Sites and/or Services and to monitor all use of and activity on the Sites and/or Services, and to remove, alter, edit or choose not to make available on or through the Sites and/or Services any Content, in whole or in part, in its sole discretion. We may remove Content that is confidential or proprietary to a third party without that third party’s permission; provided, however, that in no event shall ICON be considered a “publisher” or a “speaker,” as defined in Section 230(c) of the Communications Decency Act, codified at 47 U.S.C. §230 et. seq., of any such Content.
If you wish to terminate your Account, you may simply discontinue using the Services or contact us to request your Account be terminated – please contact us – please see Section 32 (“Contact Us”) below.
18.LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, SHALL ICON, OR ITS SPONSORS, AFFILIATES, LICENSORS, OR SERVICE PROVIDERS, OR ANY OF ITS OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, MANAGERS, OFFICERS, OWNERS OR SPONSORS (COLLECTIVELY, THE “RELEASED PARTIES”), BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY LOSSES OR DAMAGES (WHETHER ACTUAL OR CONSEQUENTIAL) ARISING OUT OF OR IN CONNECTION WITH THE SITES AND/OR SERVICES, ITS CONTENT, OR ANY PRODUCTS OR OTHER SERVICES MADE AVAILABLE THROUGH THE SITES AND/OR SERVICES, OR YOUR USE OF OR INABILITY TO USE THE SITES AND/OR SERVICES, INCLUDING ANY LOSS OR DAMAGE DUE TO VIRUSES THAT MAY AFFECT YOUR COMPUTER EQUIPMENT, SOFTWARE, DATA OR OTHER PROPERTY ON ACCOUNT OF YOUR USE OF THE SITES AND/OR SERVICES, OR ANY PART THEREOF. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS), WHETHER THE CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF AN AUTHORIZED REPRESENTATIVE OF ICON OR ANOTHER RELEASED PARTY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHOUT REGARD TO THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, ILLEGAL OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF ICON, ITS SPONSORS, AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, MANAGERS, OFFICERS, OWNERS AND SPONSORS, UNDER SUCH CIRCUMSTANCES TO YOU OR ANY PERSON OR ENTITY CLAIMING THROUGH YOU FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
19.EXPRESS DISCLAIMER OF WARRANTIES
YOUR USE OF THE SITES AND/OR SERVICES, OR ANY PART THEREOF, IS AT YOUR SOLE RISK. ICON MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE SITES AND/OR SERVICES, ANY CONTENT AND/OR WORK PRODUCT ON OR THROUGH THE SITES AND/OR SERVICES, OR ANY PRODUCT OR SERVICE PROMOTED THROUGH THE SITES AND/OR SERVICES. THE SITES AND SERVICES AND ALL OF ITS CONTENT AND ANY WORK PRODUCT ON OR THROUGH THE SITES AND/OR SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ICON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY STATUTE, CUSTOM OR COURSE OF DEALING, COURSE OF PERFORMANCE OR IN ANY OTHER WAY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ICON DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, CORRECTNESS, RELIABILITY, COMPLETENESS OR USEFULNESS OF ANY CONTENT AND ANY WORK PRODUCT APPEARING ON OR THROUGH THE SITES AND/OR SERVICES.
ICON AND ITS SUBSIDIARIES, AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT A) THE SITES AND/OR SERVICES, OR ANY PART THEREOF, WILL FUNCTION UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; B) ANY ERRORS OR DEFECTS ASSOCIATED WITH THE SITES AND/OR SERVICES, OR ANY PART THEREOF, WILL BE CORRECTED; C) THE SITES AND/OR SERVICES, OR ANY PART THEREOF, IS/ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR D) THE RESULTS OF USING THE SITES AND/OR SERVICES, OR ANY PART THEREOF, WILL MEET YOUR REQUIREMENTS.
22.STATUTE OF LIMITATIONS
23.Governing Law and Venue
24.Dispute Resolution; Arbitration of Claims
Most User concerns can be resolved quickly and to a User satisfaction by contacting us – please see Section 32 (“Contact Us”) below. This Section 24 (this “Arbitration Provision”) facilitates the prompt and efficient resolution of any Disputes (as defined below) that may arise between you and ICON. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Arbitration Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. WE WANT YOU TO KNOW HOW IT AFFECTS YOUR RIGHTS.
WE AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give ICON an opportunity to resolve the Dispute. You must commence this process by mailing written notification to ICON, 415 E Orange Grove Blvd Pasadena, CA 91104, Attn: Legal Department. That written notification must include (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek. If ICON does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt-Out
If this Arbitration Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or ICON may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Arbitration Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Arbitration Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.
Subject to the Pre-Arbitration Claim Resolution section, above, the demand for arbitration shall be made by any party hereto within a reasonable time after the Dispute or other matter in question has arisen, and in any event shall not be made after the date when institution of legal proceeding, based on such Dispute or other matter in question, would be barred by the applicable statute of limitations. Discovery issues shall be decided by the arbitrator. Post-hearing briefs shall be permitted. The arbitrator shall render a decision within twenty (20) days after the conclusion of the hearing(s). In reaching a decision, the arbitrator shall have no authority to grant an award or remedy any greater than that which would be available from a court under the statutory or common law theory asserted. The arbitrator shall issue a written opinion that includes the factual and legal basis for any decision and award. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of California or federal law, or any of them, as applicable to the claim(s) asserted. Judgment on the award may be entered in any court of competent jurisdiction.
The parties may seek, from a court of competent jurisdiction, provisional remedies or injunctive relief in support of their respective rights and remedies hereunder without waiving any right to arbitration. However, the merits of any action that involves such provisional remedies or injunctive relief, including, without limitation, the terms of any permanent injunction, shall be determined by arbitration under this Arbitration Provision. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall allocate all costs and expenses of the arbitration (including legal and accounting fees and expenses of the respective parties) to the parties in the proportions that reflect their relative success on the merits (including the successful assertion of any defenses).
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – Rather than force everyone to visit us in California, if you can demonstrate that arbitration in California would create an undue burden to you, you are free to initiate the arbitration in the federal judicial district that includes your billing address. Otherwise, the arbitration hearings will be held in Los Angeles County, California.
Payment of Arbitration Fees and Costs – ICON will pay arbitration initial filing fees (unless your claim is for greater than $10,000, in which event you are responsible for paying such filing fees) upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys and/or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with ICON as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FURTHEST EXTENT ALLOWED BY APPLICABLE LAW, ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH ARBITRATION PROCEEDING AND IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH ARBITRATION PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Class Action Waiver
TO THE FURTHEST EXTENT ALLOWED BY APPLICABLE LAW, AND EXCEPT AS PROVIDED IN THIS PROVISION, YOU AND ICON FURTHER AGREE TO ARBITRATE IN EACH OF OUR INDIVIDUAL CAPACITIES ONLY, NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS, AND EACH OF US EXPRESSLY WAIVES ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. Further, unless both you and ICON agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and ICON specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other User of the Sites and/or Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
If you’re not sure what all of this means, of course please feel free to ask an attorney.
25.Compliance with Laws
You shall comply with all applicable law when you use the Sites and/or Services.
26.Amendment and Waiver
ICON shall not be liable for delays in performing or failure to perform any obligations herein, for any reason beyond ICON’s control, including but not limited to, acts of God, fires, terrorism, strikes, civil tumult, labor disputes, war, acts or intervention by any governmental authority, failure of a common carrier, supplier, hardware, software, browser, or communications equipment, or network failure, congestion, or malfunction, or any other reason.
ICON Creative Agency Inc., 415 E Orange Grove Blvd Pasadena, CA 91104