Terms and Conditions
Last Updated: March 20, 2020
The Terms and Conditions ("Terms" or "Agreement") are an agreement between you and The Advertising Checking Bureau, Inc. ("ACB", "we", "us", or "our"). As used in these Terms, the terms "you" and "your" refers to the individuals and companies that use any part of the ACB Platform.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION BEFORE YOU AGREE TO THESE TERMS.
1. Acceptance of Terms
ACB is pleased to provide the information available through the ACB Platform conditioned upon your acceptance, without modification by you, of the terms, conditions, and notices comprising these Terms. These Terms may be updated and modified by us from time to time without notice to you by posting revised Terms on the Sites. Your continued use of the ACB Platform after we publish any change, whether or not we send out a notice about the change, means that you have agreed to the updated Terms. You can review the most current version of these Terms at any time by clicking the "Terms and Conditions" link from any page on the Sites.
2. User Accounts
To utilize certain part of the ACB Platform, you may be required to create an account through the ACB Platform. If you create an account, you must provide true, accurate, current and complete information about you as may be prompted by any registration forms. If any information you provide ACB changes, you must promptly update the relevant registration information.
By opening an account, you certify to ACB that: (a) you are at least 18 years of age; (b) you are legally able to enter into contracts; and (c) you are not a person barred from receiving or using any part of the ACB Platform under federal, state, local or other laws.
You are prohibited from using a false identity to create an account, creating an account for or on behalf of any other person, or otherwise misrepresenting your identity on the ACB Platform.
You are responsible for maintaining the confidentiality of your passwords. ACB has the right to assume that anyone accessing the ACB Platform using a valid password associated with your account has the right to do so. You will be solely responsible for the activities of anyone who accesses the ACB Platform using a valid password associated with your account, even if the individual is not in fact authorized by you. If you have reason to believe that your password has been compromised or used without authorization, you must promptly change it using the functionality provided through the ACB Platform.
3. Acceptable Use of the ACB Platform
Your use of the ACB Platform must comply with these Terms and the applicable Rules. Without limiting anything in these Terms or the applicable Rules, your use of the ACB Platform must comply with the following ("Acceptable Use Restrictions"):
You shall not upload to, transmit through, or display via the ACB Platform any content that:
- is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable (as determined by ACB in its sole discretion), or infringes ACB's or any third party's intellectual property or other rights;
- contains confidential, proprietary, or trade secret information of anyone that you do not have the right to disclose through the ACB Platform;
- violates the rights of others, including, without limitation, any privacy rights or rights of publicity;
- impersonates any person or entity or falsely states, or otherwise misrepresents, your affiliation with any person or entity, or uses any fraudulent, misleading, or inaccurate email address or other contact information;
- violates any applicable laws or regulations;
- makes any statement, express or implied, that you are endorsed by ACB;
- harms minors in any way, including, but not limited to, depicting content that violates child pornography laws, child sexual exploitation laws, and laws prohibiting the depiction of minors engaged in sexual conduct;
- contains any unsolicited promotions, political campaigning, advertising, or solicitations; or
- in ACB's sole judgment, is inappropriate or objectionable or which restricts or inhibits any other person from using and enjoying the ACB Platform or which may expose ACB and/or any of its officers, directors, employees, or other users to any harm or liability of any type.
You shall not use the ACB Platform to engage in any of the following activities:
- accessing, using, or uploading content to, or attempt to access, use, or upload content to another user's account without permission;
- violating any federal, state, local, or other laws;
- violating the Rules;
- transmitting, uploading, or downloading any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs, or other items of a destructive nature;
- engaging in commercial activity, including, without limitation, commercial use of the ACB Platform, except for the purposes of engaging in the activities for which the ACB Platform was designed; or
- creating user accounts by automated means or under false, misleading, or fraudulent pretenses.
Without limiting the foregoing, you shall not engage in, or attempt to engage in, any of the following:
- reproducing, copying, displaying, storing, performing, reposting, publishing, transmitting, distributing, selling, offering for sale, licensing, modifying, creating derivative works of, or otherwise using any portion of the Content offered on the ACB Platform other than for your own personal, non-commercial use;
- reformatting or framing any portion of the ACB Platform that are provided as a website;
- copying or modifying any code (including, but not limited to, HTML code) used to generate the Content or otherwise make the ACB Platform accessible;
- using any device, software, or procedure that interferes with, or attempts to interfere with, the normal operation of the ACB Platform;
- taking any action that imposes, or may impose in ACB's sole discretion, an unreasonable or disproportionately large load on our IT infrastructure;
- modifying, adapting, translating, or reverse engineering any portion of the ACB Platform;
- disrupting or otherwise interfering with the ACB Platform or the networks or servers used by ACB;
- impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity;
- collecting or storing, or attempting to collect or store, personal information about other users of the ACB Platform;
- or engaging in any activity that is illegal under federal, state, local, or other laws.
ACB reserves the right (but not the obligation) to terminate your access to the ACB Platform at any time without notice for any reason whatsoever.
You certify that you will comply with all applicable laws (e.g., federal, state, local, and other laws) when using the ACB Platform and any Content as permitted and in accordance with these Terms. YOU WILL BE RESPONSIBLE FOR ANY COST, EXPENSE, FEE, LIABILITY OF ANY KIND, AND ATTORNEY'S FEES THAT ACB INCURS IF YOU BREAK THE LAW, VIOLATE THE RULES, MISUSE THE ACB PLATFORM, OR BREACH THESE TERMS. IF YOU BREAK THE LAW, VIOLATE THE RULES, MISUSE THE ACB PLATFORM, OR BREACH THESE TERMS, IN ADDITION TO, AND CONSISTENT WITH, OTHER INDEMNIFICATION OBLIGATIONS SET FORTH IN THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU WILL REIMBURSE, INDEMNIFY, AND HOLD HARMLESS ACB AND ITS PAST, PRESENT, AND FUTURE SUBSIDIARIES, PARENTS, AFFILIATED COMPANIES, AND THE EMPLOYEES, DIRECTORS, OFFICERS, INSURERS, AND AGENTS OF ALL AFOREMENTIONED COMPANIES, FROM ANY MONEY DAMAGES, COSTS, EXPENSES, LOSSES, LIABILITIES, AND ATTORNEY'S FEES RESULTING FROM ANY CLAIM, THREAT, DEMAND, SUIT, OR INVESTIGATION BROUGHT BY ANOTHER PERSON, ENTITY, OR GOVERNMENT. Without waiving any of these rights, ACB may, at its sole discretion, defend itself against any such claim, threat, demand, suit, or investigation without your consent. All of your obligations in this Section survive and continue after any termination of these Terms.
ACB will terminate your access to the ACB Platform if, under appropriate circumstances, you are determined to be a repeat infringer of these Terms or otherwise a nuisance to the ACB Platform. ACB reserves the sole and exclusive right to decide whether a comment or any other submission is inappropriate or otherwise violates these Terms, other than copyright infringement, such as, but not limited to, obscene, defamatory, or just plain obnoxious material. ACB may remove such comments or other submissions and/or terminate your access for uploading such material in violation of these Terms at any time, without prior notice and at its sole discretion.
4. Proprietary Rights
All right title and interest in and to the ACB Platform, including, but not limited to, all of the software and code that comprise and operate the ACB Platform and all of the text, photographs, images, illustrations, graphics, audio, video, audio-video clips, URLs, advertising copy, and other materials provided through the ACB Platform (collectively, the "Content") are owned by ACB or by third parties who have licensed their content to us. The ACB Platform is protected under trademark, service mark, trade dress, copyright, patent, trade secret, and other intellectual property laws. In addition, the entire Content of the ACB Platform is a collective work under United States and international copyright laws and treaties, and ACB owns the copyright in the selection, coordination, arrangement, and enhancement of the Content of the ACB Platform.
We hereby grant you a limited, revocable license to download and print copies of any portion of the Content of the ACB Platform to which you have properly gained access, but only for your own personal, non-commercial use, and only if you do not remove, modify, or obscure any copyright, trademark, or other proprietary notices from the Content you download or print. The foregoing license is subject to these Terms and does not include the right to use any data mining, robots, or other automatic or manual device, software, program, code, algorithm, or methodology to access, copy, or monitor any portion of the ACB Platform, or in any way reproduce or circumvent the navigational structure or presentation of any part of the ACB Platform, or obtain, or attempt to obtain, any materials or information through any means not purposely made available by to you through the ACB Platform. We reserve the right to take measures to prevent any such activity. This license is revocable at any time without notice and with or without cause. You may not permit others to copy, distribute, perform or display publicly, prepare derivative works based on, broadcast, exploit, or use any part of the Content on the ACB Platform as expressly provided in these Terms. Nothing in these Terms shall be construed as transferring any right, title, or interest in the ACB Platform to you or anyone else, except the limited license to use the ACB Platform on the terms expressly set forth herein.
Notwithstanding the foregoing, and specifically with regard to trademarks, the ACB names and logos (including, but not limited to, those of its affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks, and logos appearing within the ACB Platform, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of ACB and/or those of its affiliates (collectively, the "ACB Marks"). All other trademarks, product names, company names, logos, service marks, and/or trade dress mentioned, displayed, cited, or otherwise indicated within the ACB Platform are the property of their respective owners. You are not authorized to display or use the ACB Marks in any manner without our prior written permission. You are not authorized to display or use trademarks, product names, company names, logos, service marks, and/or trade dress of third parties features within the ACB Platform without the prior written permission of such third parties. The use or misuse of the ACB Marks or other trademarks, product names, company names, logos, service marks, and/or trade dress or any other materials contained therein, except as permitted herein, is expressly prohibited.
5. User-Provided Data
You shall be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of any data, information, or material you provide, disclose or submit to ACB through your use of the ACB Platform ("User Data"). You warrant that you have the right to possess and use all User Data you upload, submit, or otherwise provide through the ACB Platform, including the right to disclose User Data to ACB and use User Data in connection with the ACB Platform. You further represent and warrant that, prior to uploading, submitting, or otherwise providing any User Data through the ACB Platform or otherwise in connection with these Terms that: (a) you have received all required consents or authorizations with respect to such User Data referencing any individual; and (b) you will use, store, and transfer all User Data in accordance with all laws applicable to you or, if applicable, your business and any state law equivalents of counterparts thereof and all regulations promulgated under any of them).
You are prohibited from disclosing information that you do not have the right to disclose, including the information of any third party, or that would result in the violation of anyone's intellectual property rights.
As between you and ACB, you own the User Data and any other content and information that you submit or post to the ACB Platform, provided that you grant ACB a worldwide, transferable and sublicensable right to use, copy, modify, distribute, publish, and process, without any further consent, notice and/or compensation to you or others, any User Data and other information and content you provide through the ACB Platform.
You understand and agree that foregoing limited non-exclusive license grants ACB the right to share User Data relating to you with other users in connection with the ACB Platform, subject to the same limitations set forth above.
ACB welcomes your feedback and suggestions about how to improve our products and services and the ACB Platform. By transmitting any ideas, suggestions or other feedback regarding ACB and/or any part of the ACB Platform ("Feedback"), you automatically grant ACB the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, redistribute, transmit, perform and display such Feedback (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed for the full term of any rights that may exist in such Feedback. Further, ACB is free to use any ideas, concepts, know-how, techniques, and suggestions contained in any communications you send to ACB for any purpose whatever, including, but not limited to, creating and marketing products and/or services using such information.
6. Confidentiality Cannot be Guaranteed
Please be advised that the confidentiality of any communication or material transmitted to ACB via www.acbcoop.com or Internet electronic mail cannot be guaranteed, including personal information such as your address or social security number. To ensure private and personalized attention, you may also contact ACB by telephone at (901) 346-9941 (Data Security Officer), or write us at The Advertising Checking Bureau, Inc., 5775 Summer Trees Drive, Memphis, TN 38134.
7. Privacy Statement
ACB has a Privacy Statement disclosing what information we collect about visitors, how we use such information, the steps we take to secure such information, how you can view and correct such information, and how you can decline to have information about you collected or used. Click here to view the Privacy Statement, which is incorporated by references, as if set forth fully herein.
8. Disclaimer of Warranty
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACB PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE OR PROMOTED THROUGH THE ACB PLATFORM. THE ACB PLATFORM, AND ALL OF THE INFORMATION, PRODUCTS AND SERVICES MADE AVAILABLE THROUGH THE ACB PLATFORM ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PORTION OF THE ACB PLATFORM, INCLUDING, BUT NOT LIMITED TO, ANY SERVICES, INFORMATION, PRODUCTS AND SERVICES MADE AVAILABLE THROUGH THE ACB PLATFORM. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE AND OUR AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED: (a) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (b) ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (c) RELATING TO THE SECURITY OF THE ACB PLATFORM; (d) THAT THE CONTENT OF THE ACB PLATFORM IS ACCURATE, COMPLETE, CURRENT OR RELIABLE; AND (e) THAT THE ACB PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
ACB DOES NOT ENDORSE, AND IS NOT RESPONSIBLE FOR, STATEMENTS, ADVICE, AND OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED ACB SPOKESPERSONS. WE DO NOT ENDORSE, AND ARE NOT RESPONSIBLE FOR, ANY STATEMENTS, ADVICE, OR OPINIONS CONTAINED IN USER DATA, THIRD PARTY STATEMENTS, OR ANY OTHER CONTENT PROVIDED BY A THIRD PARTY, AND SUCH STATEMENTS, ADVICE, AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE, AND OPINIONS OF ACB. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
9. Corrections and Changes
While we endeavor to keep the materials on the Site up to date, ACB cannot assume responsibility for any errors or omissions in these materials. ACB further does not warrant the accuracy or completeness of the information, text, graphics, links or other items contained within these materials. ACB may make changes to these materials, or to the products or services described herein, at any time without notice, and makes no commitment to update the information contained herein. ACB reserves the right to terminate your access to the Site in the event that you violate these Terms and Conditions, or for any reason whatever.
10. Copyright Compliance
If you are a copyright owner or an agent thereof and believe that any user submission or other content on the ACB Platform infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing ACB with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail):
- 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 ACB to locate the material;
- Information reasonably sufficient to permit ACB to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have 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; and
- 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 owner of an exclusive right that is allegedly infringed.
DMCA claims may be sent to the following address:The Advertising Checking Bureau, Inc.
5775 Summer Trees Drive
Memphis, TN 38134
DMCA claims can also be sent to ACB's Copyright Agent via email at email@example.com. (subject line: "DMCA Takedown Request").
11. Dispute Resolution
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
YOU AGREE THAT BY USING THE ACB PLATFORM YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST ACB ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, YOUR USE OF THE SITES OR SERVICES, OR YOUR DEALINGS WITH ACB SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FEDERAL ARBITRATION ACT. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"), AS MODIFIED BY THIS SECTION. THE ARBITRATION WILL BE CONDUCTED USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF ANY ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND ACB AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS YOU MUST ABIDE BY THE FOLLOWING RULES: (a) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (b) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN MEMPHIS, TENNESSEE. THE ARBITRATOR'S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. IN ANY ARBITRATION PROCEEDING BETWEEN YOU AND ACB IN CONNECTION WITH THESE TERMS, YOUR USE OF THE ACB PLATFORM, OR YOUR DEALINGS WITH ACB, THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY'S FEES AND COSTS IN SUCH ARBITRATION FROM THE OTHER PARTY.
THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, YOUR USE OF THE ACB PLATFORM, OR YOUR DEALINGS WITH ACB MUST BE COMMENCED IN ARBITRATION WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2) YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE'S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
YOU AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION (i.e., WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION) SHALL BE DETERMINED BY THE ARBITRATOR. NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN NEW YORK, NY, AS APPROPRIATE, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THESE TERMS. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE ACB PLATFORM AND YOUR RELATIONSHIP WITH ACB. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1-16 ("FAA"), AND NOT BY STATE LAW. INFORMATION ON AAA AND HOW TO START ARBITRATION CAN BE FOUND AT WWW.ADR.ORG.
IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 45 DAYS OF WHEN YOU FIRST USE THE ACB PLATFORM, OR SUBMIT THROUGH THE ACB PLATFORM A REQUEST FOR INFORMATION, YOU MUST SEND US A LETTER STATING, "REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE" AT THE FOLLOWING ADDRESS:The Advertising Checking Bureau, Inc.
5775 Summer Trees Drive
Memphis, TN 38134
In the event you opt out of the arbitration provision, you agree to litigate exclusively in the state and federal courts located within New York, NY, as appropriate, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THESE TERMS OR THE RULES, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO THE USE OF THE ACB PLATFORM SHALL BE THE AMOUNT OF $100.
IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE ACB PLATFORM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE ACB PLATFORM. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATE "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
IF YOU ARE ACCESSING THE ACB PLATFORM FROM NEW JERSEY, YOU (a) ASSUME ALL RISKS OF LOSSES OR DAMAGES RESULTING FROM YOUR USE OF, OR INABILITY TO USE, THE ACB PLATFORM; (b) IRREVOCABLY WAIVE ALL LOSSES OF INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) THAT MAY OCCUR AS A RESULT OF YOUR USE OF THE ACB PLATFORM; (c) EXPRESSLY AGREE TO RELEASE AND DISCHARGE ACB AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS FROM ANY AND ALL CLAIMS OR CAUSES OF ACTION RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR USE OF THE ACB PLATFORM; AND (d) YOU VOLUNTARILY GIVE UP OR WAIVE ANY RIGHT THAT YOU MAY OTHERWISE HAVE TO BRING A LEGAL ACTION AGAINST ACB FOR LOSSES OR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR OTHER LEGAL THEORY, INCLUDING ANY CLAIM BASED ON ALLEGED NEGLIGENCE ON THE PART OF ACB AND ITS AFFILIATES AND ITS AND THEIR AGENTS AND EMPLOYEES. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS "WAIVER AND RELEASE" AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY.
You agree to defend, indemnify, and hold harmless ACB, its past, present and future affiliates, licensors, advertisers, third party suppliers, other business partners, and service providers, and its and their respective officers, managers, directors, employees, contractors, agents, licensors, suppliers, successors, insurers and assigns (collectively, the "ACB Indemnified Parties") from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorney's fees) arising out of or relating to, directly or indirectly, your violation of these Terms or your use of the ACB Platform, including, but not limited to: (a) your negligence or misconduct; (b) any User Data you contribute to or submit through the ACB Platform, including without limitation information associated with your account; (c) your conduct, including your use of the ACB Platform; (d) your connection to the ACB Platform; (e) any violation or breach of these Terms; (f) your violation or infringement of any intellectual property, privacy, publicity, confidentiality, proprietary or other rights of any person or entity; (g) your use of the Content; or (h) your violation of applicable laws (collectively, the "Claims").
You are solely responsible for defending any such Claims, and for payment of any and all losses, costs, damages or expenses resulting from the foregoing. ACB shall have the right, in its sole discretion, to select its own legal counsel to defend the ACB Indemnified Parties from any Claims (but by doing so shall not excuse your indemnity obligations) and you shall be solely responsible for the payment of all of ACB's reasonable attorneys' fees incurred in connection therewith. You shall notify ACB immediately if you become aware of any actual or potential claims, suits, actions, allegations, or charges that could affect your or ACB's ability to fully perform their respective duties or to exercise its rights under these Terms. You shall not, without the prior written approval of ACB, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for any of the ACB Indemnified Parties.
14. Links to Other Web Sites
The ACB Platform may, from time to time, contain links to other Internet Web sites for the convenience of users in locating information and services that may be of interest. As a user of the ACB Platform, you acknowledge and agree that these third-party sites are maintained by persons or organizations over which ACB exercises no control, and ACB expressly disclaims any responsibility for the content, the accuracy of the information and/or quality of products or services provided by or advertised on these third-party sites. ACB does not control, endorse, promote, or have any affiliation with any other Web site unless expressly stated in the Site. You expressly agree that ACB does not need to give you notice that you are leaving the ACB Platform or are connecting to a third party website or service.
Advertising may be presented to you when you use the ACB Platform. You consent to receiving such advertisements. You also acknowledge and agree that ACB is not responsible for any products or services provided by advertisers outside of ACB, its subsidiaries or its affiliated companies.
15. Use of the Internet
Use of the Internet is solely at your own risk and is subject to all applicable state, national and international laws and regulations. Neither ACB nor its affiliates will be liable for any loss resulting from a cause over which they do not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, natural disasters, strikes or other labor problems, wars, or governmental restrictions.
16. Governing Law and Jurisdiction
These Terms and Conditions will be governed by and construed in accordance with the laws of the State of New York, without reference to its choice of law rules. By accessing, viewing, or using the material on the Site, you consent to the jurisdiction of the federal and state courts presiding in New York, NY, and agree to accept service of process by mail and hereby waive any and all jurisdictional and venue defenses otherwise available. This Site is controlled and operated by ACB from its offices within the United States. ACB makes no representation that materials in the Site are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. Those who choose to access this Site from other locations do so on their own volition and are responsible for compliance with applicable local laws.
You agree that ACB, in its sole discretion, may suspend or terminate your account (or any part thereof) of use of the ACB Platform and remove and discard any content within the ACB Platform for any reason, including, but not limited to, lack of use or if ACB believes you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the ACB Platform may be referred to appropriate law enforcement authorities. ACB may also in its sole discretion and at any time discontinue providing the ACB Platform, or any part thereof, with or without notice. You agree that any termination of your access to the ACB Platform under any provision of these Terms may be effected without prior notice, and acknowledge and agree that ACB may immediately deactivate your account and all related information and files in your account and/or bar any further access to the ACB Platform. Further, you agree that ACB will not be liable to you or any third party for any termination of your access to the ACB Platform.
You may terminate these Terms at any time by closing your account and ceasing all access of the ACB Platform.
Upon termination or expiration of these Terms for any reason, all rights to the ACB Platform granted by ACB to you will immediately cease to exist and you shall discontinue all use of the ACB Platform.
18. Additional Rules
You acknowledge that ACB may establish additional Rules, including, but not limited to, general practices and limits concerning your use of the ACB Platform. You are responsible for ensuring any use of the ACB Platform complies with these Terms and any additional Rules applicable to such use.
If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
20. Copy of Terms
A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.