TERMS OF SERVICE
EFFECTIVE DATE: FEBURARY 01, 2018
Acceptance of the Terms and Conditions.
- Binding Agreement; Description. This Terms of Service (“Agreement”) is a binding contract between you, an individual user (“you” or “User”), and De Forest & Associates, Inc (“De Forest Search,” “we,” “us,” or “our”) governing your use of any websites and/or online services or properties owned and operated by De Forest Search, including the website www.deforestsearch.com (collectively, the “Service”). You acknowledge that your purchase of services from De Forest Search or third parties may be subject to additional terms and conditions. BY ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU MAY NOT USE THE SERVICE.
- Material Terms and Notices. As provided in greater detail in this Agreement (and without limiting the express language of this Agreement), you acknowledge the following:
- the Service is licensed to you for the purpose of using the Service only as set forth in this Agreement;
- the use of the Service may be subject to separate third-party terms of service and fees, which are your sole responsibility;
- the Service is provided “as is” without warranties of any kind and De Forest Search liability to you is limited; and
- we will resolve disputes arising under this Agreement through binding arbitration. By accepting this Agreement, as provided in greater within this Agreement, you and De Forest Search are each waiving the right to a trial by jury or to participate in a class action.
- Changes to this Agreement. We reserve the right, at our discretion, to change this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. If a change to this Agreement materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
- You understand and agree that this Agreement is entered into in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
- THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY DE FOREST SEARCH. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or guardian who is at least 18 years of age.
- Description. The Service provides you with information concerning De Forest Search. You may also choose to keep in touch with De Forest Search through subscribing to the De Forest Search newsletter or corresponding with De Forest Search through the functionality provided on the Service.
Intellectual Property Rights.
- License. The Service is licensed, not sold, to you for use only under the terms of this Agreement. De Forest Search reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with this Agreement, De Forest Search hereby grants you a personal, limited, revocable, non- transferable license to access and use the Service solely for your personal, non-commercial use.
- Content. The content that Users may access on or through the Service, including, without limitation, any text, graphics, photos, and interactive features, may be protected by copyright or other intellectual property rights and owned by De Forest Search or De Forest Search’s third party licensors (the “De Forest Search Content”). You may not copy, reproduce, upload, republish, transmit, create derivative works of, publicly perform, or distribute any materials from the Service in any way without prior express written permission of the copyright owner of such material or as otherwise specified in this Agreement or permitted by the Service’s functionalities. You may not modify or use any materials obtained from or available through the Service unless you have obtained the applicable copyright owner’s prior express written authorization. De Forest Search solely owns all design rights, databases, and compilation and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and related goodwill.
- Marks. The De Forest Search trademarks, service marks, and logos (the “De Forest Search Trademarks”) used and displayed on the Service are De Forest Search’ registered and unregistered trademarks or service marks. Other product and service names located on the Service may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,)” and, collectively with the De Forest Search Trademarks, the “Trademarks”). Nothing on the Service or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Service without De Forest Search’s prior express written consent for each individual use. You may not use the Trademarks to disparage De Forest Search or the applicable third party (including De Forest Search or the third party’s products or services) or in any manner, using commercially reasonable judgment, that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any Service without De Forest Search’s prior express written consent. Should you wish to use a Third-Party Trademark, you must obtain prior express written consent. All goodwill generated from the use of any De Forest Search Trademark will inure solely to De Forest Search’ benefit.
- Restrictions. You may not sell, transfer, assign, license, sublicense, or modify the De Forest Search Content, and you may not reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the De Forest Search Content in any way for any public or commercial purpose. The use or posting of any of the De Forest Search Content on any other website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, then your right to access and/or use the De Forest Search Content and Service will automatically terminate and you must immediately destroy any copies you have made of the De Forest Search Content
Restrictions on Use of the Service.
- In using the Service, you agree not to:
- take any action that imposes an unreasonable load on the Service’s infrastructure;
- use any device, software, or tour tine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software comprising or making up the Service;
- delete or alter any material De Forest Search or any other person or entity posts on the Service;
- frame or link to any of the materials or information available on the Service;
- alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;
- use any trademarks, service marks, design marks, logos, photographs, or other content belonging to De Forest Search or obtained from the Service;
- access, tamper with, or use non-public areas of the Service, De Forest Search’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of De Forest Search’s providers;
- harass, abuse, harm, or advocate or incite harassment, abuse, or harm of another person or group, including De Forest Search’s employees;
- provide any false personal information to De Forest Search
- create a false identity or impersonate another person or entity in any way;
- restrict, discourage, or inhibit any person from using the Service;
- use the Service, without De Forest Search’s express written consent, for any commercial or unauthorized purpose;
- gain unauthorized access to the Service or to other computers or websites connected or linked to the Service;
- make available any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any aspect of the Service or communications equipment and computers connected to the Service;
- interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies, or procedures of those networks or servers;
- violate any applicable federal, state, or local laws or regulations or the terms of this Agreement; or
- assist or permit any persons in engaging in any of the activities described above.
- The Service may contain links to or the ability to share information with third party websites, (collectively, “External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. De Forest Search is not responsible for the content of any linked External Sites and does not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk. You agree that De Forest Search will have no liability to you arising from your use, engagement, exposure to or interaction with any External Sites.
- While we are continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending De Forest Search or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms will apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to De Forest Search, you agree that:
- De Forest Search has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and De Forest Search is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant De Forest Search perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the- audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
- Generally. In the interest of resolving disputes between you and De Forest Search relating to the Service, or this Agreement in the most expedient and cost effective manner, you and De Forest Search agree that any dispute arising out of or in any way related to this Agreement, your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this Agreement, your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND DE FOREST SEARCH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding Section 8.a above, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitration. Any arbitration between you and De Forest Search will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting De Forest Search. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by U.S. Mail or email (“Notice”). De Forest Search’ address for Notice is: De Forest & Associates, Attn: Legal Department, 1145 Artesia Boulevard, Suite 203, Manhattan Beach, CA 90266 or email@example.com. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or De Forest Search may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or De Forest Search must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award that exceeds the last written settlement amount offered by De Forest Search prior to selection of an arbitrator, then De Forest Search will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by De Forest Search in settlement of the dispute prior to the arbitrator’s award; or (iii) $15,000.
- Fees. If you commence arbitration in accordance with this Agreement, De Forest Search will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, California , but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse De Forest Search for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND DE FOREST SEARCH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and De Forest Search 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.
- Modifications to this Arbitration Provision. Except as otherwise provided in this Agreement, if De Forest Search makes any future change to this arbitration provision, other than a change to De Forest Search’s address for Notice, then you may reject the change by sending us written notice within 30 days of the change to De Forest Search’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern the disputes between you and De Forest Search.
- Enforceability. If paragraph 6 above is found to be unenforceable or if the entirety of this Section is found to be unenforceable, then the entirety of this Section will be null and void.
- Choice of Law. This Agreement will be governed and construed in accordance with the laws of the State of California, excluding its conflicts of law rules.
Limitation of Liability and Disclaimer of Warranties.
- THE PROVISIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW
1.1. DE FOREST SEARCH, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS (COLLECTIVELY, THE “DE FOREST SEARCH PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY THEREOF. THE DE FOREST SEARCH PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY CONTENT OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. TO THE FULLEST EXTENT PERMITTED BY LAW, AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT AT YOUR OWN RISK.
1.2. THE DE FOREST SEARCH PARTIES DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO DE FOREST SEARCH PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
1.3. THE SERVICE AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, THE DE FOREST SEARCH PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE.
1.4. IN NO EVENT WILL ANY DE FOREST SEARCH PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE SERVICE AND ANY CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH DE FOREST SEARCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DE FOREST SEARCH’ LIABILITY, AND THE LIABILITY OF ANY OTHER DE FOREST SEARCH PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU TO DE FOREST SEARCH UNDER THIS AGREEMENT.
Third Party Disputes.
- DE FOREST SEARCH IS NOT AFFILIATED WITH ANY THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY SERVICE PROVIDER, THIRD PARTY SERVICE, OR OTHER THIRD PARTY OR ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU IRREVOCABLY RELEASE THE DE FOREST SEARCH PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the De Forest Search Parties from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use, or misuse of the De Forest Search Content or Service. De Forest Search will provide notice to you of any such claim, suit, or proceeding. De Forest Search reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests assisting De Forest Search’ defense of such matter.
Termination of this Agreement.
- De Forest Search reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Service at any time and for any reason without prior notice or liability. De Forest Search reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability.
- Sections 1, 3, 4.2, 4.3, 4.4, 5, and 6 through 14 survive the termination of this Agreement indefinitely. For purposes of clarification only, each header (eg. Termination of this Agreement.) is considered a Section.
Consent to Communication.
- By providing us with your contact information, you agree to receive communications, including via e-mail and calls (including text messages and calls made using an autodialer or prerecorded voice message), from or on behalf of us at the email address or telephone number you provided even if that number is on a National or State Do Not Call List. These calls and texts may be for informational and marketing purposes, such as to provide you with information about your order, to confirm reservation details, or to provide special promotional offers. You are not required to provide your consent to these calls/texts as a condition of any purchase. Standard text messaging and telephone minute charges applied by your cell phone carrier will apply. IF YOU WISH TO OPT OUT OF MARKETING EMAILS, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF YOU WISH TO OPT OUT OF TEXTS, YOU MAY REPLY “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES OR SEND US AN EMAIL AT HELLO@DEFORESTSEARCH.COM WITH YOUR CELLPHONE NUMBER AND A CLEAR REQUEST NOT TO RECEIVE FURTURE MARKETING CALLS/TEXTS OR ALL CALLS/TEXTS. IF YOU WISH TO OPT OUT OF MARKETING CALLS, YOU MAY ALSO MAKE A DO NOT CALL REQUEST DURING ANY CALL YOU RECEIVE FROM US.