THE AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT DISALLOWS CLASS ACTIONS, A CLASS ACTION WAIVER PROVISION, AND A JURY WAIVER PROVISION.
Do not use this Application if you do not accept this Agreement. If you use or access the Application, you affirmatively accept terms and conditions of the Agreement.
OneLouder reserves the right to change the Agreement from time to time. You are responsible for regularly reviewing the Agreement. Your continued use of this Application after any modification of the Agreement constitutes your affirmative acceptance of the modified Agreement.
When you use the Application or send e-mail to us, you are communicating with us electronically. Your use of the Application or communication with us via e-mail will be deemed to be your consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on our website at http://onelouder.com. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Use of Applications
You agree to use the Application only for purposes that are permitted by (a) the Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You agree to comply with all applicable export controls and regulations with regard to the Application. By using the Application, you represent and warrant that you are not prohibited from receiving exports or services under US or other applicable export laws. You agree to comply with all local laws and regulations regarding the download, installation and/or use of the Application. In order to access certain services in the Application, you may be required to provide information about yourself. You agree that any such information you provide to OneLouder will always be accurate, correct and up to date.
You understand and agree that OneLouder is not responsible for any use of any offers or information presented by the Application. You agree that OneLouder is not responsible or liable for any content accessed, or harmed caused, from the Application or third-party websites. You understand that by using the Application, you may encounter content that you may find offensive, indecent, or objectionable, or may contain explicit language. You understand that the results of any search, including entering a URL, may unintentionally and automatically generate links or references to offensive material. You agree that you are solely responsible for (and that OneLouder has no responsibility to you or to any third party for) your use of the Application and any breach of your obligations under the Agreement.
You acknowledge that the Application may communicate with OneLouder servers (including Pinsight Media+ servers) from time to time to check for updates to the Application, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, "Updates"). By installing the Application, you agree to such automatically requested and received Updates.
You agree that OneLouder may stop (permanently or temporarily) providing the Application (or any features within the Application) to you or to users generally at OneLouder's sole discretion, without prior notice to you. You agree that if OneLouder disables access to the Application, you may be prevented from accessing the Application or certain features within the Application.
You may not distribute, publish, or send through an Application: (1) any spam, including any unsolicited advertisements, solicitations, commercial messages, informational announcements, or promotional messages of any kind; (2) chain mail; (3) numerous copies of the same or substantially similar messages; (4) empty messages; (5) messages that contain no substantive content; (6) very large messages or files that disrupt a server, account, newsgroup, or chat service; or (7) any message that is categorized as "phishing," or (8) any content that contains offensive material, including, without limitation, material that is unlawful, libelous, defamatory, obscene, indecent, lewd, harassing, hateful, discriminatory, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory, or otherwise objectionable. Without limiting the foregoing, you may not access or use our Applications in any manner for the transmission or dissemination of images containing child pornography.
Intellectual Property Rights
The Application, and all content included on or within the Application, such as the user interface, the compilation of the content and arrangement of the website, and all text, graphics, pictures, sound, video, data, applications and other content (collectively, "Content"), is the property of OneLouder, its Retailers or its content suppliers and is protected by United States copyright and other intellectual property laws and by international treaties. You acknowledge these rights and will not take any action to jeopardize, limit, or interfere with OneLouder's, its Retailers', or its content suppliers' rights to the Content. Reproduction or redistribution of Content except as expressly permitted by the Agreement is prohibited and may result in civil and criminal penalties. Violators will be prosecuted to the fullest extent permissible under applicable law.
OneLouder, the OneLouder logo and associated trade dress are trademarks of OneLouder. The trademarks and trade dress of OneLouder may not be used without the prior written permission of OneLouder. All other brand names, product names, service marks, logos or trademarks are the property of their respective owners, and may not be used without the owner's prior written consent.
OneLouder grants you a personal and limited revocable, non-exclusive, non-transferable license to access and make personal use of this Application. You may not download, reverse engineer, decompile, disassemble, or modify it, or any portion of it, except with express written consent of OneLouder. This license does not include the right to resell or make any commercial use of this Application or any Content; collect or use any product listings, offers, descriptions, or prices; make any derivative work from this website or Content; download or copy account information for the benefit of another merchant; or use any data mining, robots, or similar data gathering and extraction tools. Neither this Application nor any portion of this Application may be copied, sold, resold or otherwise exploited for any commercial purpose without express written consent of OneLouder. You may not link, frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Application without the prior written consent of OneLouder. You may not use any Meta tags or any other "hidden text" utilizing the OneLouder name or trademarks without the prior written consent of OneLouder. Your unauthorized use of this Application will immediately terminate the limited license granted by OneLouder.
Unsolicited Submission of Ideas
Although OneLouder welcomes questions or feedback about your use of our Applications and OneLouder's services and products, OneLouder does not accept, invite, or consider under any circumstances unsolicited submissions of ideas, creative suggestions, or proposals ("Ideas") relating to its business, including Ideas for services, products, technologies, processes, materials, product names, advertising campaigns, promotions, or marketing plans. This policy is intended to avoid disputes in the event that OneLouder's products or marketing strategies seem similar to ideas submitted to OneLouder or its employees. Therefore, unless otherwise explicitly stated by OneLouder, all ideas and intellectual property included in any unsolicited submission of Ideas will automatically be treated as non-confidential and as the sole property of OneLouder, without any compensation whatsoever to you. OneLouder will have no obligations to you with respect to such Ideas and has the right to destroy submissions of Ideas upon receipt.
Digital Millennium Copyright Act
OneLouder respects the intellectual property rights of others and is committed to complying with U.S. copyright laws, including the Digital Millennium Copyright Act of 1998 ("DMCA"). The DMCA provides recourse for owners of copyrighted material who believe their rights under U.S. copyright law have been infringed on the Internet or other telecommunications networks.
As a provider of transitory digital communications, OneLouder's activities are protected by the safe harbor provision of the DMCA (see 17 U.S.C. 512 (a)). OneLouder is therefore not obligated to respond to a copyright owner (or the owner's agent) nor does OneLouder have a duty to remove or disable access to material transmitted, routed or connected to the OneLouder network(s) that is initiated and/or directed by an individual user.
If you believe that OneLouder has infringed your copyrighted work in a way that does not fall within the applicable DMCA safe harbor provision, please provide notice to our Copyright Agent. The notice must include the following information as required by the DMCA (see 17 U.S.C. 512(c)(3)). In addition, the notice should include the basis for your belief that OneLouder is not merely providing transitory digital communications under 17 U.S.C. 512(a) of the DMCA:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notification is accurate and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
NOTE: The Copyright Agent should only be contacted with respect to copyright-infringement matters. The Copyright Agent will not respond to general inquiries.
All copyright complaint communications should be directed to the attention of:
Attn: Copyright Complaint
6391 Sprint Parkway
Overland Park, Kansas 66251
Parties other than OneLouder operate stores, provide services, or sell the products advertised on the Application. We are not responsible for examining or evaluating their products, services or advertising. We do not warrant or guarantee any third parties' offerings, products, services, website content or advertising, nor do we assume any responsibility or liability for their actions, products or services. You should carefully review their privacy statements and other terms and conditions of use before purchasing products or services, or visiting the websites of such third parties.
OneLouder does not warrant that product descriptions or other content presented by the Application is accurate, complete, reliable, current, or error-free. OneLouder makes no representation or warranty as to the accuracy or fitness for use of any offers, including, but not limited to, discounts, coupons or special offers presented by the Application, including that any Retailer or third party will honor or acknowledge any such discounts, coupons or special offers contained in the Application. OneLouder does not warrant that the Application, its functions, or content will be uninterrupted or error free, or that defects will be corrected.
Disclaimer of Implied Warranties
ONELOUDER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE APPLICATION IS PROVIDED BY ONELOUDER ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK. ONELOUDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE APPLICATION OR THE CONTENT OR PRODUCTS INCLUDED ON THE APPLICATION. ONELOUDER DOES NOT WARRANT THAT THE APPLICATOIN, ITS SERVERS, OR E-MAIL SENT FROM ONELOUDER ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Limitation of Liability
ONELOUDER WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE APPLICATION, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR RELATED TO PROVIDING OR FAILING TO PROVIDE SERVICES IN CONNECTION WITH THE APPLICATION, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, OR COST OF REPLACEMENT PRODUCTS AND SERVICES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
TO THE EXTENT ALLOWED BY LAW, OUR LIABILITY FOR MONETARY DAMAGES FOR ANY CLAIMS THAT YOU MAY HAVE AGAINST US IS LIMITED TO NO MORE THAN THE AMOUNT ACTUALLY PAID FOR THE APPLICATION. IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER STATUTORY, CONTRACT OR TORT (INCLUDING NEGLIGENCE) EXCEED $50.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
NO ACTION MAY BE BROUGHT FOR ANY BREACH OF THIS AGREEMENT OR RELATING TO ANY APPLICATION OR ANY PRODUCT OR SERVICE MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
By using the Application, you agree that the laws of the state of Missouri, without regard to principles of conflict of laws, will exclusively govern the construction of the Agreement and any dispute of any sort that might arise between you and OneLouder. The Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
You release, and will defend and indemnify us and our officers, directors, employees, agents, successors and assigns (each an "indemnified party"), from and against all claims or causes of actions, and any liabilities, obligations, judgments, fines, costs and expenses (including reasonable attorneys' and expert witnesses' fees and costs) incurred by an indemnified party due to such claim or cause of action arising out of (i) any breach of the Agreement by you (ii) your use of the Application or (iii) the use by any other persons accessing the Application using your account. You further agree to pay our reasonable attorneys' and expert witnesses' fees and costs arising from any actions or claims by third parties and those incurred in establishing whether this section applies.
DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THIS CAREFULLY; IT AFFECTS YOUR RIGHTS
In those rare instances where your concern arises, but you and OneLouder cannot agree on a resolution, you and OneLouder agree that the dispute will be resolved through individual binding arbitration or small claims court, instead of courts of general jurisdiction.
Mandatory Arbitration and Waiver of Class Action
Instead of suing in court, you and OneLouder agree to arbitrate all Disputes (as defined below) on an individual, non-representative, basis. You agree that, by entering into this Agreement, you and OneLouder are waiving the right to a trial by jury or to participate in a class action or representative action. This agreement to arbitrate is intended to be broadly interpreted.
In arbitration, there is no judge or jury. Instead Disputes are decided by a neutral third-party arbitrator in a more informal process than in court. In arbitration, there is limited discovery and the arbitrator's decision is subject to limited review by courts. However, just as a court would, the arbitrator must honor the terms of the Agreement and can award damages and relief, including any attorneys' fees authorized by law.
"Disputes" shall include, but are not limited to, any claims or controversies against each other related in any way to or arising out of in any way our Applications or the Agreement, including, but not limited to, Applications, billing services and practices, policies, contract practices (including enforceability), service claims, privacy, or advertising, even if the claim arises after the Application or service is no longer available or has terminated. Disputes also include, but are not limited to, claims that: (a) you or an authorized or unauthorized user of the Application or services bring against our employees, agents, affiliates, or other representatives; (b) you bring against a third party, such as a retailer or advertiser, that are based on, relate to, or arise out of in any way our Applications or the Agreement; or (c) that OneLouder brings against you. Disputes also include, but are not limited to, (i) claims in any way related to or arising out of any aspect of the relationship between you and OneLouder, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims or any other legal theory; (ii) claims that arose before this Agreement or out of a prior Agreement with OneLouder; (iii) claims that are subject to on-going litigation where you are not a party or class member; and/or (iv) claims that arise after the termination of this Agreement.
Dispute Notice and Dispute Resolution Period Before initiating an arbitration or a small claims matter, you and OneLouder each agree to first provide to the other a written notice ("Notice of Dispute"), which shall contain: (a) a written description of the problem and relevant documents and supporting information; and (b) a statement of the specific relief sought. A Notice of Dispute to OneLouder should be sent to: General Counsel; Arbitration Office - OneLouder; 12502 Sunrise Valley Drive, Mailstop VARESA0202-2C682; Reston, Virginia 20191. OneLouder will assign a representative to work with you and try to resolve your Dispute to your satisfaction. You and OneLouder agree to make attempts to resolve the Dispute prior to commencing an arbitration or small claims action. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you or OneLouder may commence an arbitration proceeding or small claims action.
Arbitration Terms, Process, Rules and Procedures
(1) Unless you and OneLouder agree otherwise, the arbitration will be conducted by a single, neutral arbitrator and will be conducted only in the United States and in the county where you have permanent residence. The arbitration will be governed by either: (a) rules that we mutually agree upon; or (b) the JAMS Comprehensive Arbitration Rules & Procedures (the "JAMS Rules"), as modified by this agreement to arbitrate, including the rules about the filing, administration, discovery and arbitrator fees. The JAMS rules are available on its website at jamsadr.com. Notwithstanding any JAMS Rule to the contrary or any other provision in arbitration rules chosen, by agreement, to govern the arbitration, we each agree that all issues regarding the Dispute are delegated to the arbitrator to decide, except that only a court (and not the arbitrator) shall decide any disagreements regarding the scope and enforceability of this agreement to arbitrate.
(2) The Federal Arbitration Act ("FAA") applies to this Agreement and arbitration provision. We each agree that the FAA's provisions-not state law-govern all questions of whether a Dispute is subject to arbitration. To the extent that this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards for Procedural Fairness (the "Minimum Standards"), the Minimum Standards in that regard will apply. However, nothing in this paragraph will require or allow you or OneLouder to arbitrate on a class-wide, representative or consolidated basis.
(3) The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND ONELOUDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER IN ANY PUTATIVE CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and OneLouder expressly agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If any portion of this provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(4) We each are responsible for our respective costs, including our respective counsel, experts, and witnesses. OneLouder will pay for any filing or case management fees associated with the arbitration and the professional fees for the arbitrator's services.
(5) An arbitrator's award will be a written statement of the disposition of each claim and will also provide a concise written statement of the essential findings and conclusions which form the basis of the award. The arbitrator's decision and award is final and binding, with some limited court review under the FAA, and judgment on the award may be entered in any court with jurisdiction.
(6) As an alternative to arbitration, we may resolve Disputes in small claims court in the county where you have permanent residence. In addition, this arbitration agreement does not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency. Such agencies can, if the law allows, seek relief against OneLouder on your behalf.
No Trial by Jury and No Class Action
IF FOR ANY REASON A CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY WAY PROCEEDS IN COURT RATHER THAN IN ARBITRATION, REGARDLESS OF WHETHER THE CLAIM IS AN ACTION, COUTERCLAIM OR ANY OTHER COURT PROCEEDING, WE EACH AGREE THAT TO THE EXTENT ALLOWED BY LAW, THERE WILL NOT BE A JURY TRIAL OR CLASS ACTION AND WE EACH UNCONDITIONALLY (1) WAIVE ANY RIGHT TO TRIAL BY JURY AND (2) WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS, INCLUDING JOINING A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACTITY ON BEHALF OF ANYONE ELSE IN ANY OTHER PROCEEDING.
The Agreement supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Application. Rights and obligations under this Agreement, which by their nature should survive and will remain in full effect after any termination or expiration of the Agreement. If a court of competent jurisdiction finds any part of the Agreement invalid or unenforceable, such finding will not affect the balance of the Agreement, which will remain valid and enforceable. Any notice under this Agreement must be delivered by internationally recognized overnight courier to the attention of Eric Haar, Communications Support Manager, OneLouder at 909 Walnut Street, Fourth Floor, Kansas City, Missouri 64106.