Terms and Conditions
The website located at www.tailwindspray.com (the “Site”) is a copyrighted work belonging to Waterway LLC. (“Waterway”, TAILWIND,” “Us,”“Our,” and/or “We”), and its affiliates, subsidiaries, parent company, and other related companies.
THESE TERMS OF USE (“AGREEMENT”) SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THE AGREEMENT IF YOU DO NOT HAVE THE CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE OR SERVICES. IF YOU ARE USING THE SITE OR SERVICES ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH COMPANY, ENTITY, OR ORGANIZATION WITH THE AUTHORITY TO BIND IT TO THIS AGREEMENT.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS
1. IMPORTANT DISCLAIMERS.
ALL INFORMATION CONTAINED ON THE SITE AND SERVICES IS FOR INFORMATIONAL PURPOSES ONLY. CONTENT POSTED BY TAILWIND ON ANY WEBSITE, KIOSK, MOBILE APPLICATION, SOCIAL MEDIA CHANNEL, THIRD-PARTY CONTENT SERVICE, OR ADVERTISEMENT IS FOR INFORMATIONAL PURPOSES ONLY. WATERWAY LLC DOES NOT ENDORSE, AND IS NOT RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF, ANY OPINION, ADVICE, STATEMENT, OR OTHER INFORMATION MADE ON THE SITE OR SERVICES, INCLUDING USER CONTENT AND THIRD-PARTY MATERIALS (EACH AS DEFINED BELOW). WATERWAY LLC IS NOT RESPONSIBLE FOR YOUR RELATIONSHIP WITH ANY DISPENSARY, RETAIL LOCATION, HEALTH CARE PROVIDER, ANY THIRD-PARTY, OR OTHER USERS OF THE SITE OR SERVICES. WATERWAY LLC IS NOT OBLIGATED TO SCREEN DISPENSARIES, RETAIL LOCATIONS, HEALTH CARE PROVIDERS, OR THEIR MENUS, CONTENT, OR DEALS TO DETERMINE WHETHER THEY ARE QUALIFIED OR AUTHORIZED BY LAW TO PROVIDE THEIR SERVICES OR TO DETERMINE THE ACCURACY OF THEIR MENUS OR OTHER INFORMATION THEY PROVIDE.
WATERWAY LLC DOES NOT OFFER MEDICAL ADVICE. ANY INFORMATION ACCESSED THROUGH THE SITE AND SERVICES, OR WITHIN ANY OF TAILWIND’s SOCIAL MEDIA PAGES OR CHANNELS IS FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY, IS NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND IS NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, OR ADVERSE EFFECTS. SUCH INFORMATION INCLUDES, WITHOUT LIMITATION, THIRD-PARTY MATERIALS, USER CONTENT, AND TAILWIND-GENERATED CONTENT DERIVED FROM USER CONTENT. THE INFORMATION ON THE SITE AND SERVICES AND PROVIDED VIA TAILWIND’s SOCIAL MEDIA PAGES AND CHANNELS SHOULD NOT BE USED FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION. ALWAYS CONSULT A QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SITE, SERVICES, OR ON TAILWIND’s SOCIAL MEDIA PAGES AND CHANNELS.
ACKNOWLEDGEMENT OF FEDERAL LAW: User expressly acknowledges that TAILWIND is for residents of states and localities with laws regulating medical or the recreational use of cannabis only and that medical cannabis collectives and patients are established pursuant to their respective local laws. Marijuana is included on Schedule 1 under the United States Controlled Substances Act. Under the federal laws of the United States of America, manufacturing, distributing, dispensing or possession of marijuana is illegal, and individuals are subject to arrest and/or prosecution for doing so. User further acknowledges that medical use is not recognized as a valid defense under federal laws regarding marijuana. User also acknowledges that the interstate transportation of marijuana is a federal offense.THE FOREGOING DISCLAIMERS AND LIMITATIONS ON LIABILITY SHALL NOT LIMIT THE MORE GENERAL DISCLAIMERS AND LIMITATIONS ON LIABILITY IN SECTIONS 9 AND 10 OR ELSEWHERE IN THIS AGREEMENT.
2. ELIGIBILITY
You must be 21 years of age or a qualified medical marijuana patient to use the Site and/or Services within the United States.
3. SITE
3.1 License. Subject to the terms of this Agreement, WATERWAY LLC grants you a non-transferable, non-exclusive license to use the Site and Services for your personal, noncommercial use.
3.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof.
3.3 Modification. WATERWAY LLC reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that WATERWAY LLC will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
4. OWNERSHIP
Excluding User Content, you acknowledge that all the intellectual property rights in the Site and Services are owned by TAILWIND or TAILWIND’s licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights. TAILWIND and its suppliers reserve all rights not granted in this Agreement.
5. USER CONTENT.
5.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site or Services. You acknowledge and agree that WATERWAY LLC is not responsible for any User Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. WATERWAY LLC does not assume and will not have any liability or responsibility to you or any other person or user for your use or misuse of any User Content.
5.2 User Content – Restrictions. You agree not to use the Site, Services, or any of TAILWIND’s social media pages or channels to collect, upload, transmit, display, or distribute any User Content that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third-party.
5.3 User Content – Your Responsibilities. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third-party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored, or endorsed by Waterway LLC. You acknowledge and agree that Waterway LLC is not responsible for any User Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Waterway LLC does not assume and will not have any liability or responsibility to you or any other person or user for your use or misuse of any User Content. Because you alone are responsible for your User Content (and not Waterway LLC), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy or other applicable laws. Waterway LLC is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content, if you desire.
5.4 License. You hereby grant, and you represent and warrant that you have the right to grant, to Waterway LLC an irrevocable, nonexclusive, royalty-free and fully-paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
5.5 Feedback. If you provide TAILWIND any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to TAILWIND all rights in the Feedback and agree that TAILWIND shall have the right to use such Feedback and related information in any manner it deems appropriate. TAILWIND will treat any Feedback you provide to TAILWIND as non-confidential and non-proprietary. You agree that you will not submit to TAILWIND any information or ideas that you consider to be confidential or proprietary.
6. ACCEPTABLE USE POLICY.
The following sets forth TAILWIND’s “Acceptable Use Policy”:
6.1 Reviews. You agree not to post reviews on the Site, Services, or any of TAILWIND’s social media pages or channels that are not based upon your personal experience or are otherwise designed for any purpose other than providing other users on the Site with an accurate description of your personal experience. Reviews based on secondhand, non-personal experience are not allowed. In addition to the other restrictions contained in the Acceptable Use Policy, reviews posted on the Site, Services, or any of TAILWIND’s social media pages or channels must not: (a) be written exclusively in capital letters; (b) be plagiarized; (c) contain spam, advertisements, and/or links to external websites; (d) contain disparaging information about any Dispensary employees or any other person, (e) contain overly detailed or sexual descriptions of an individual’s physical appearance, or lewd personal attacks against a specific individual or group of individuals affiliated with the Dispensary, (f) contain references to Dispensaries or competitors other than the product or Dispensary being reviewed, or (g) contain unrelated personal grievances. If you are an owner, volunteer, or employee of a Dispensary you may not post reviews about your Dispensary or products or about your competitors’ Dispensary or products. As an owner of a Dispensary, you are responsible for moderating and enforcing the Acceptable Use Policy on all reviews posted to your Dispensary page.
6.2 Photos. Image files must exclusively feature the products they illustrate and must not include body parts, messy or cluttered backgrounds, product wrapping, currency, paraphernalia, brand names, or other any objects other than the product itself. Image files must be clear and must not be blurry, fuzzy, or contain any flash reflections. Products should be centered in the image file. Image files must contain an accurate depiction of the product they illustrate. Image files cannot contain pornography or other graphic images and must otherwise abide by the guidelines set forth in this Section 6.
6.3 Technological Restrictions. In addition, you agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (e) attempt to or impersonate another user or TAILWIND or gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; or (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services.
6.4 Monitoring, Suspension, and Termination. We reserve the right (but have no obligation) to review any User Content (including any image files or reviews), investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content and/or reporting you to law enforcement authorities) if we in our sole discretion suspect that you have violated the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
7. INDEMNITY.
You agree to indemnify and hold Waterway LLC (and its officers, employees, and agents) harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and/or expenses (including reasonably attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of (i) your use or misuse of the Site or Services, (ii) your User Content, (iii) your violation of this Agreement; or (iv) your violation of applicable laws or regulations. Waterway LLC reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Waterway LLC. Waterway LLC will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
8. THIRD-PARTY INTERACTIONS; THIRD-PARTY MATERIALS; DEALS; MENUS; OTHER USERS; RELEASE.
8.1 Third-Party Interactions. During use of the Site or Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-party service providers, advertisers, or sponsors showing their goods and/or services through the Service. In particular, Waterway LLC is not a party to any transaction that you may enter into with a third-party. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between you and the applicable third-party. Waterway LLC shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction, or promotion between you and any such third-party. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Service.
8.2 Third-Party Materials. The Site or Services might display, include, or make available third-party content (including data, information, articles applications or other products, services and/or materials) or contain links to third party websites, services, and advertisements for third parties such as Deals and dispensary Menus, including pricing, product names, and product descriptions each Menu (defined below) (collectively, “Third-Party Materials”). You acknowledge and agree that Waterway LLC is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Waterway LLC does not assume and will not have any liability or responsibility to you or any other person or user for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk. When you link to a Third-Party Material, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Material.
8.3 Deals. The Site or Services might display, include, or make available coupons, promotional codes, giveaways, samples, and other offers from listed dispensaries (collectively, “Deals”). Deals constitute “Third Party Materials” under this Agreement. TAILWIND displays these Deals on the Site and Services as a form of advertisement for the listing dispensary (the “Offeror”) only. All Deals are offered directly by the applicable Offeror, and may be subject to additional terms, conditions, or restrictions of the Offeror or under applicable law, whether or not such additional terms, conditions, or restrictions are expressly included on the Site or Services. The Offeror, and not TAILWIND, is solely responsible for: (a) redemption of the Deal; (b) compliance of all aspects of the Deal with applicable law (including without limit, the advertisement, redemption, and terms, conditions and restrictions related thereto); (c) all goods and services it provides to you in connection with the Deal; and (d) all injuries, illnesses, damages, claims, liabilities and costs it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of a Deal or not.
8.4 Other Users. Each user of the Site or Services is solely responsible for any and all of its User Content and Third-Party Materials. Because we do not control User Content and/or Third-Party Materials, you acknowledge and agree that we are not responsible for any User Content and/or Third-Party Materials, we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content and/or Third-Party Materials, and we assume no responsibility for any User Content and/or Third-Party Materials. Your interactions with other Site or Service users (including Dispensaries) are solely between you and such user. You agree that Waterway LLC will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
8.5 Release. In consideration of your use of the Site and Services, you hereby release and forever discharge Waterway LLC (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish your rights with respect to, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including claims related to privacy, receipt of text messages, personal injuries, death, and property damage), known or unknown, that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users, Third-Party Interactions, or Third-Party Materials. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” If you are a non-California resident, you hereby agree that the release above applies to all claims, including claims you did not know existed at the time you signed this Agreement.
9. DISCLAIMERS.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, TAILWIND (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU
10. LIMITATION ON LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TAILWIND (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TAILWIND’s (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID TAILWIND IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
11. TERM AND TERMINATION.
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement, your right to access and use the Site and Services will terminate immediately. Waterway LLC will not have any liability whatsoever to you for any termination of this Agreement, including for deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3.2-3.4, 4–14.
12. COPYRIGHT POLICY.
TAILWIND respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
12.1 Your physical or electronic signature;
12.2 Identification of the copyrighted work(s) that you claim to have been infringed;
12.3 Identification of the material on our services that you claim is infringing and that you request us to remove;
12.4 Sufficient information to permit us to locate such material;
12.5 Your address, telephone number, and e-mail address;
12.6 A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
12.7 A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
13. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.
Except for disputes brought in small claims court, all disputes between you and TAILWIND arising out of, relating to or in connection with the Site or Services shall be exclusively settled through binding arbitration pursuant to the then-current rules of the American Arbitration Association (“AAA”) for commercial arbitration and not in court. This agreement to arbitrate applies to any claim brought under the laws of any state or national government, including claims under the Telephone Consumer Protection Act of 1991, the Federal Trade Commission Act, the Consumer Product Safety Act, or any other federal, state or local law or ordinance. There is no judge or jury in arbitration and you are agreeing to waive your right to pursue claims in court to the greatest extent permitted by law. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. YOU AND WATERWAY LLC AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in this Agreement to the contrary, if the class and representative-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor we are entitled to arbitration, and any class or representative-action claims shall proceed in a court of competent jurisdiction in King County, Washington. This arbitration agreement is entered into and enforceable pursuant to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. Notwithstanding any provision in this Agreement to the contrary, we agree that if TAILWIND makes any future change to this dispute resolution provision, it will not apply to any individual claim(s) about which you had already provided notice to Waterway LLC. Information on AAA and how to start arbitration can be found at www.adr.org or by calling 800-778-7879. If the arbitration in this Section provision is found unenforceable or to not apply for a given dispute, then the proceeding must be brought exclusively in a court of competent jurisdiction in King County, Washington. You hereby accept the exclusive jurisdiction of such court for this purpose. To the extent enforceability of this Agreement requires reference to any state law, the Parties agree such reference shall be to the laws of the State of Washington without regard to conflict of law provisions.
13.1 Pre-Arbitration Dispute Resolution. Prior to resorting to formal dispute resolution procedures, you hereby agree to try to resolve disputes amicably and efficiently by emailing customer support at [email protected]. Any communication to us regarding any dispute you have must be sent within ninety calendar days of the date of the event giving rise to the dispute. You agree that engaging in this pre-arbitration dispute resolution procedure is a prerequisite to initiating a complaint in arbitration or any other form. If pre-arbitration dispute resolution efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”) within ninety calendar days of the date on which the parties agree that the pre-arbitration dispute resolution has failed. The Notice to us should be sent to the address identified in Section 14.6 below. You hereby agree that failure to follow any of the steps outlined in this paragraph operates as a waiver of your right to pursue your claims in arbitration or any other forum.
13.2 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
13.3 Future Changes to Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, we agree that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided in Section below. By rejecting any future change, you are agreeing that you will individually arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
14. GENERAL
14.1 No Support or Maintenance. You acknowledge and agree that TAILWIND will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
14.2 Changes to Terms of Use. We may amend these Terms at any time in our sole discretion. If we do so, we will post the modified Terms on the Service. The modifications will be effective immediately. You agree to review these Terms periodically so that you are aware of any modifications. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
14.3 Miscellaneous. This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision, nor shall any single or partial exercise by Waterway LLC of any right or power hereunder preclude further exercise of that or any other right hereunder. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Nothing contained herein shall be construed to establish an employment, partnership, or joint venture relationship between you and Waterway LLC. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Waterway LLC’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
14.6 TAILWIND Contact Information:
[email protected]
TAILWIND
3795 Paris St.
Denver, CO 80239
Additional Resources
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