Last updated on May 15, 2020
THESE TERMS CONTAIN AN ARBITRATION PROVISION AND CLASS ACTION WAIVER PURSUANT TO WHICH YOU MAY BE WAIVING CERTAIN RIGHTS, INCLUDING THE RIGHT TO FILE SUIT IN COURT, PARTICIPATE IN A CLASS ACTION, OR TO HAVE DISPUTES HEARD BY A JURY, UNLESS YOU OPT OUT. IF YOU DO NOT WISH TO AGREE TO THE ARBITRATION PROVISION, PLEASE FOLLOW THE OPT-OUT PROCEDURES DESCRIBED IN THE AGREEMENT TO ARBITRATE SECTION BELOW, WHICH YOU CAN REVIEW BY CLICKING HERE.
You are responsible for the software, hardware and Internet service needed to access and use the Services. If you access and use the Services on your smartphone, tablet or other mobile device (“Mobile Device”), you are solely responsible for any and all data and other fees related to use of the Services through your Mobile Device.
The Company does not guarantee availability of the Service and you may access the Service if and when it is available. The Service may occasionally be down for service, upgrades, maintenance, or other reasons. To the maximum extent authorized under applicable law, the Company reserves the right to change, remove, delete, restrict, block access to, or stop providing any or all of the Service at any time and without notice.
You represent and warrant that you are at least 18 years of age or the age of legal majority in your jurisdiction, whichever is higher, and have the right, authority, and capacity to accept and agree to these Terms. If you are under age 18 or are otherwise unable to accept and agree to these Terms, you may not use or access the Service. If we discover or have any reason to suspect that you are not at least 18 years of age or otherwise unable to accept and agree to these Terms, we reserve the right to suspend or terminate your access to the Service immediately and without notice.
Permitted Use; Intellectual Property Rights
The Service is based in the United States. If you use the Service outside of the United States, you are responsible for compliance with all local laws. The Service and all photos, information, graphics, text, images, sounds, and other materials (including metadata) that are provided to you through the Service (“Content”) are owned by the Company and its licensors.
Subject to your compliance with these Terms, we grant you a limited, non-transferable, non-sublicensable, non-exclusive right to use the Service and Content in connection with your WordPress website. Any breach of these Terms will result in the immediate revocation of the license granted in this paragraph. You agree not to copy, distribute, or resell the Service. You agree to comply with all applicable laws relating to your use of the Service. You agree to use the Service only as expressly permitted in these Terms. You agree not to otherwise disassemble, decompile, or reverse engineer any portion of the Service, except to the extent that applicable law expressly permits it despite this limitation. You agree not to circumvent, disable or otherwise interfere with security related features of the Service or its features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content. You may not use the Service for any illegal purpose. Any scraping, automated access, or other unauthorized access to and storage of Content is prohibited. You agree not to perform unauthorized scans of our network, including: scans of our infrastructure or servers; scans of our cloud providers or cloud services; scans of our systems at any layer of the OSI including packet level and application layer scans; sending malformed or malicious packets to our network, servers, infrastructure or applications; and sending application requests that are malformed or malicious to our network, servers, infrastructure or applications. You agree not to use the Service in any way that would interfere with or disrupt the operation of the Service or the networks or servers connected to the Service in any manner; to impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity (including the Company); to upload, post, or otherwise transmit any content that infringes the proprietary rights of any third party, or is otherwise unlawful or offensive; or to harass or otherwise harm any other person or entity. Any unauthorized use of the Service may result in termination of all rights to use the Service and may be subject to legal action.
The Company and its affiliates, licensors, and suppliers own all right, title, and interest (including intellectual property rights) in the Service and the Content and reserve all rights not expressly granted to you in these Terms. The Service and the Content are protected by copyright and other intellectual property laws. The Company’s logos and trademarks referenced and used in the Service and the Content are the trademarks of the Company and its licensors. Any other company names, product names, service names, and logos referenced in the Service or the Content may be the trademarks of their respective owners.
The Company has no obligation to and may not provide updates for the Service. If the Company does provide updates, supplements, or add-on components to the Service after the date you initially use, access, or download the Service (collectively, “Updates”), these Terms will apply to the Updates. If the Company provides additional terms along with any Updates, those terms will apply to the Updates. The Company may add new features or remove existing features offered through the Service.
Third Party Products, Services, Websites, and Links.
Blog; User Content
Users may be permitted to post or submit user comments, statements, or other information to us or the Service, such as in response to our blog content (www.Defiant.com/blog) (“User Content”). All User Content or other content posted by users reflect the views of the individual contributors and do not reflect the views of the Company. You grant to Company and all members of the public who have access to User Content on or through the Service a worldwide, royalty-free, perpetual, fully-paid, sublicensable, transferable, and non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display the User Content you make available through the Service and to publish your name and other information about you in connection with that User Content. You represent and warrant that you have all the rights necessary to grant the rights in this Section and that the use and publication of your User Content will not violate any law. You must not provide any User Content that infringes others’ copyrights or other intellectual property or privacy rights, and if you do, you are breaching this contract. You are solely responsible for all content you provide to us or make available through the Service. The Company takes no responsibility and assumes no liability for any material posted by you or any third party. We reserve the right to remove User Content from the Site that is offensive, repetitive, acts as advertisements, or poses a risk to our users or the Service.
You agree that if you provide us any suggestions, comments, or other feedback about the Service (“Feedback”), the Feedback is given voluntarily and we are free to use, disclose, reproduce, distribute, and otherwise exploit the Feedback without any obligations or restrictions of any kind.
Copyright Infringement – Notification Procedures
If you believe that your work has been used on our Site in a way that constitutes copyright infringement, you should send written notification thereof, in accordance with the provisions of the Digital Millennium Copyright Act (the “Notification”), to our Designated Copyright Agent, who can be reached as follows:
Mailing address: Copyright Department, COO for Defiant Inc., 800 5th Ave., Suite 4100, Seattle, WA 98104
Pursuant to 17 U.S.C. § 512(c), to be effective, the Notification must include the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) 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. (iii) 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 us to locate the material. (iv) Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an email address. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the Notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. This process only relates to reporting a claim of copyright infringement. Messages related to other matters will not receive a response through this process. Please note that under Section 512(f) of the Digital Millennium Copyright Act, any person who knowingly materially misrepresents that material is infringing may be subject to liability. If you are unsure whether material on the Site is infringing, we suggest that you contact an attorney prior to sending notice.
Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE,” AND THE ENTIRE RISK OF USE AND PERFORMANCE REMAINS WITH YOU. THE COMPANY OR ITS AFFILIATES AND LICENSORS DO NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY AND HEREBY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICE: (A) WILL MEET YOUR NEEDS OR EXPECTATIONS; (B) WILL BE AVAILABLE OR PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, COMPLETE, OR RELIABLE, OR (D) WILL BE FREE FROM VIRUSES, WORMS, OR OTHER HARMFUL OR MALICIOUS COMPONENTS, NOR DO WE WARRANT THAT ANY DEFECTS OR ERRORS WITH THE SERVICE WILL BE CORRECTED.
Disclaimer of Certain Damages
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES; FOR LOSS OF PROFITS; LOSS OR CORRUPTION OF DATA OR OTHER INFORMATION; OR ANY OTHER LOSS OR ANY KIND, WHETHER FORESEEABLE OR NOT, BASED ON, RESULTING FROM, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR THESE TERMS, EVEN IF WE OR ANY OF OUR AFFILIATES, SUPPLIERS, OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THEY ARE NOT EXCLUDED OR DISCLAIMED UNDER THE DISCLAIMER OF WARRANTIES OR DISCLAIMER OF CERTAIN DAMAGES SECTIONS, OUR MAXIMUM, AGGREGATE LIABILITY TO YOU, AND YOUR EXCLUSIVE REMEDY UNDER THESE TERMS FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THESE TERMS OR THE SERVICE WILL NOT EXCEED THE MONIES PAID BY YOU TO COMPANY IN THE 12 MONTHS PRECEDING THE RELEVANT CLAIM OR $10, WHICHEVER IS GREATER. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THESE TERMS OR THE SITE WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES.
The Disclaimer of Certain Damages Section is independent of your exclusive remedy in the Limitation of Liability and Exclusive Remedy Section and it survives even if the exclusive remedy fails of its essential purpose or otherwise is deemed unenforceable. Each of the limitations of liability above apply without regard to whether loss, liability, or damage arise from (a) breach of contract, (b) breach of warranty, (c) fault or tort, including negligence and misrepresentation, (d) strict liability, or (e) any other cause of action, to the extent the exclusions and limitations are not prohibited by applicable law.
You agree to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Site and Service, including any data or content transmitted or received by you; (ii) your violation of these Terms; or (iii) your violation of any third-party rights, including without limitation any privacy or intellectual property rights.
Agreement to Arbitrate; Class Action Waiver; and Location of Dispute Resolution
You and the Company each agree that all claims, controversies, and disputes between you and the Company, including those arising out of or related to the Site, our products, or these Terms (each a “Dispute” and collectively the “Disputes”), will be resolved by binding arbitration by a single neutral arbitrator, provided, however, you and the Company are not precluded from asserting in small claims court any Dispute that is eligible to be brought in small claims court. BY AGREEING, YOU ACKNOWLEDGE THAT YOU AND THE COMPANY ARE EACH AGREEING TO FOREGO THE ABILITY TO PURSUE DISPUTES IN COURT, OTHER THAN SMALL CLAIMS COURT, INCLUDING THE ABILITY TO HAVE A JURY DECIDE DISPUTES. Unless you and the Company otherwise agree, the American Arbitration Association (“AAA”) will arbitrate all disputes and the AAA’s Consumer Arbitration Rules (but excluding AAA’s Supplemental Rules for Class Arbitration) will apply, except to the extent the provisions of the AAA Consumer Arbitration Rules are different from, conflict with, and/or are inconsistent with the terms of this Section, in which case the provisions of this Section will control and must be followed as written. You and the Company each agree to only pursue Disputes on an individual basis and will not pursue Disputes, whether in arbitration or otherwise, on a class, consolidated, or representative basis, regardless of the application of procedural rules. BY AGREEING, YOU ACKNOWLEDGE THAT YOU AND THE COMPANY ARE EACH AGREEING TO FORGO THE ABILITY TO PROCEED IN CLASS ACTIONS, CONSOLIDATED ACTIONS, OR REPRESENTATIVE ACTIONS, EITHER AS A REPRESENTATIVE OF OR MEMBER OF A CLASS. Notwithstanding any AAA rule to the contrary, or any other provision in arbitration rules chosen by agreement to govern the arbitration, you and the Company each agree that any challenges to the validity or enforceability of the class action waiver in this Section will be decided by a federal court or a court of competent jurisdiction, and not by an arbitrator. If any court or arbitrator holds that the class action waiver in this Section is unenforceable, then the Dispute must be brought in a state or federal court, and not in arbitration. If any portion of this arbitration provision other than the class action waiver will be found to be unenforceable, that portion will be severed, and the rest of this arbitration provision will remain in effect. A copy of the AAA Commercial Arbitration Rules is available at www.adr.org/commercial and is incorporated herein by this reference as though set forth in full. If you reside in the United States, you and the Company each agree that the location of the arbitration or court where the Dispute will be resolved will be Seattle, Washington if you live west of the Mississippi River, and in Chicago, Illinois, if you live east of the Mississippi River. If you do not reside in the United States, you and the Company each agree that the location of the arbitration or court where the Dispute will be resolved will be Seattle, Washington. You and the Company each also agree that for arbitrated Disputes, the arbitrator’s award will be final and binding and may be entered as a judgment in any court of competent jurisdiction. An arbitrator may award, on an individual basis, any relief authorized by law, including injunctive or declaratory relief and reasonable attorneys’ fees. You and the Company each are responsible for your or its respective costs relating to the arbitration. You and the Company each are responsible for your own respective costs relating to the arbitration, except that the Company will pay the arbitration administrative or filing fees, including the arbitrator fees (other than arbitrator fees up to the amount of the then-applicable fee for filing a civil action in federal court in the judicial district where you live in any Dispute where you assert a claim against the Company, unless you demonstrate to the arbitrator that you would be entitled to file that civil action in federal court without payment of the then-applicable fee). To begin arbitration, you must send a letter requesting arbitration and describing your Dispute to the address listed for the Company in this Section. You may opt out of the agreement to arbitrate in this Section by mailing the Company written notice of your election to opt out at Defiant, Inc., 800 5th Ave., Suite 4100, Seattle, WA 98104 and email@example.com within 45 days of agreeing to these Terms, expressly indicating that you are opting out of the agreement to arbitrate in this Section and including your name and address, provided that the election will not be effective until it is received by the Company. Your election to opt-out of the agreement to arbitrate in this Section will not otherwise affect your rights and obligations under these Terms. You and the Company each also agree that these Terms affect interstate commerce, so the Federal Arbitration Act, not state law, applies including with respect to any question of whether a Dispute is subject to arbitration (despite the choice of governing law). In accordance with the FAA, the appointed arbitrator must interpret, apply and enforce this Section as written.
Force Majeure. The Company will not be liable or responsible for any failure to perform or delay in performance of any of the obligations under these Terms that is caused by an act or event beyond our reasonable control, including without limitation act of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
Governing Law; Exclusive Jurisdiction; Venue
These Terms will be governed by and construed in accordance with the laws of the State of Washington without reference to its conflict of laws provisions. If for any reason a claim proceeds in court rather than in arbitration, you agree to submit to the exclusive jurisdiction and venue in the state and federal courts sitting in King County, Washington, for any and all disputes, claims, and actions arising from or in connection with the Service, Site, or these Terms.
Changes to These Terms
We reserve the right to change these Terms at any time upon notice to you. We may give notice by making the updated Terms available through the Service or by any other reasonable means. You can review the most current Terms at any time at: https://www.Defiant.com/terms-of-use/. When we change these Terms, we will require you to accept the updated Terms to continue using the Service. If you do not accept the updated Terms, you may not continue to use the Service. Updated Terms are binding on you on the effective date indicated at the top of these Terms.
We may give you all notices (including legal process) that we are required to give by any lawful method, including by making notice available through the Service or by sending it to any email or mailing address that you provide to us. You acknowledge that if you do not provide us with current and accurate contact information, we may not be able to contact you. You agree to send us notice by emailing it to the following address: firstname.lastname@example.org.
These Terms, together with any amendments, incorporated terms or policies, and any additional agreements you may enter into with the Company, will constitute the entire agreement between you and the Company. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of the Terms, which will remain in full force and effect. Section titles are only for convenience and have no legal or contractual significance. No waiver of any portion of these Terms will be deemed a further or continuing waiver of such term or any other term, and the Company’s failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. A waiver will only be binding on us if it is in writing and signed by us. The Company may assign these Terms, in whole or in part, at any time with or without notice to you. You may not assign these Terms or assign, transfer, or sublicense your rights, if any, in the Service. YOU AND THE COMPANY AGREE THAT IN NO EVENT WILL ANY CLAIM, ACTION, OR PROCEEDING BE INSTITUTED MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE. The Limitation of Liability, Indemnity, and Governing Law Sections of these Terms survive any termination.
If you have any questions or concerns in regards to these Terms, please contact email@example.com.