AlcaCruz Terms of Service Agreement
1. Your Agreement to the Terms of Service
This Terms of Service Agreement (hereinafter the “Agreement") is a legally binding Agreement that governs the relationship with our users and others which may use, interact, interface, or link to AlcaCruz, Inc., located at 411 Borel Ave., Suite 510, San Mateo, California USA 94402 and AlcaCruz Inc.’s Subsidiaries and Affiliates, including without limitation, CruzTV, (hereinafter all AlcaCruz entities are collectively referred to as “AlcaCruz”).
Please read the following Agreement carefully. This Agreement applies to your use of all websites, applications, software, hardware, data feeds, products and services provided, owned, or operated by AlcaCruz, AlcaCruz Inc., or any of their Subsidiaries and Affiliates (hereinafter collectively referred to as “AlcaCruz Services” or the “Services”).
Although we may attempt to notify you when major changes are made to these Agreement, you should periodically review the most recent version of the Agreement. AlcaCruz may, in its sole discretion, modify or revise these Agreement at any time, and you agree to be bound by such modifications or revisions. Your continued use of AlcaCruz’s Services will serve as your unconditional agreement and acceptance with any changes in the Agreement.
2. Children’s Privacy and Age Restrictions
IF YOU ARE UNDER 13 YEARS OF AGE, THEN PLEASE DO NOT USE OR ACCESS THE ALCACRUZ SERVICES AT ANY TIME OR IN ANY MANNER.
Protecting the privacy of children is especially important. For that reason, AlcaCruz does not knowingly collect or maintain personal information (as defined by the United States Children’s Online Privacy Protection Act) from persons under 13 years-of-age. If AlcaCruz learns that personal information of persons under 13 has been collected on or through the AlcaCruz Services, AlcaCruz will take appropriate steps to delete this information.
If you are the parent or legal guardian of a child under 13 who has become an AlcaCruz Services member, then please contact AlcaCruz at email@example.com to have that child’s account terminated and personal information deleted.
For residents of the EEA, where processing of personal information is based on consent, AlcaCruz will not knowingly engage in that processing for users under the age of consent established by applicable data protection law. If we learn that we are engaged in processing with such users, we will halt such processing and will take reasonable measures to promptly remove applicable information from our records.
If you are between the ages of 13 and 18, please review this Agreement carefully. Your parent or guardian should also review this Agreement. If you and your parent or guardian do not agree with this Agreement in its entirety, then you may not use AlcaCruz’s Services.
Please note: Parents and Guardians are jointly and severally liable for all acts (including purchases and payments) and omission of their children if the child is under the age of 18 years old.
By using AlcaCruz’s Services, you affirm that: (a) you are over 18 years of age or (b) that you are between the ages of 13 years and 18 years, and that both you and your parent or guardian have agreed with the terms of this Agreement.
3. Your Account and Community Rules
In order to use some of the Services, you may have to create a User Account. In order to create your User Account, you must complete the application form. You must be truthful in completing the form. A misrepresentation on the form is grounds for your account being either suspended or terminated.
As an AlcaCruz user, you herein acknowledge, understand and agree that all information, text, software, data, photographs, music, video, messages, tags or any other content, whether it is publicly or privately posted and/or transmitted, is the sole responsibility of the individual from whom the content originated. This means that you are responsible for content that you post, upload, email, or transmit to AlcaCruz.
AlcaCruz does not guarantee the accuracy, integrity or quality of any content available on the AlcaCruz Services. It is expressly understood that by using our Services, you may be exposed to content including, but not limited to, any errors or omissions in any content posted, and/or any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available by AlcaCruz.
You may not use another person’s account without that person’s permission.
You are responsible for your own AlcaCruz account. Although AlcaCruz will not be liable for your losses caused by unauthorized use of your account, you may be liable for the losses of and to AlcaCruz or others due to unauthorized use of your account.
Please notify AlcaCruz immediately once you become aware of any breach of security or unauthorized access to your account.
AlcaCruz grants you permission to access and use the Services provided that:
You must use the Services in a lawful manner.
You agree not to distribute in any medium any part of the Services or the Content without AlcaCruz's prior written authorization, unless AlcaCruz makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).
You agree not to post, upload, or distribute any content that is unlawful, abusive, obscene, profane, pornographic, indecent, lewd, threatening, or fraudulent.
You also agree to not post, upload, or distribute any content showing a person engaged in the death, harm, torture, or mutilation of any animal.
You agree not to encourage any criminal activity.
You agree not to infringe on the Intellectual Property Rights of others.
You agree not to attempt to reverse engineer, disassemble, or decompile the software, code or binaries of any software owned by AlcaCruz.
You agree not to alter or modify any part of the Services.
You agree not to misrepresent or lie when engaging with the Services and the Services’ staff and users.
You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means AlcaCruz may designate.
You agree not to sell access to AlcaCruz’ Services unless you have AlcaCruz’s written permission.
You agree not to sell advertising or sponsorships or promotions within the Service unless you have AlcaCruz’ written permission.
You agree not to cause harm to minors in any manner whatsoever.
You agree not to upload, post, distribute, email, transmit, or otherwise offer any content that you do not personally have any right to offer pursuant to any law or in accordance with any contractual or fiduciary relationship.
You agree not to upload, post, distribute, email, transmit, or otherwise offer any source that may contain a software virus or other computer code, any files and/or programs which have been designed to interfere, destroy and/or limit the operation of any computer software, hardware, or telecommunication equipment.
You agree not to interfere or disrupt any AlcaCruz Services, servers and/or networks that may be connected or related to AlcaCruz websites, including, but not limited to, the use of any device software and/or routines to bypass the robot exclusion headers.
You agree not to intentionally or unintentionally violate any local, state, federal, national or international laws, including, but not limited to, rules, guidelines, and/or regulations decreed by the U.S. Securities and Exchange Commission, in addition to any rules of any nation or other securities exchange, that includes without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law.
You agree not to provide informational support or resources, concealing and/or disguising the character, location, and or source to any organization delegated by the United States government as a "foreign terrorist organization" in accordance to Section 219 of the Immigration Nationality Act.
You agree not to stalk or otherwise harass another individual.
You agree not to collect or store any personal data relating to any other member or user in connection with the prohibited conduct and/or activities which have been set forth in the aforementioned paragraphs.
If you use the AlcaCruz or CruzTV Uploader, be aware that it may automatically download and install updates from time to time from AlcaCruz. These updates are designed to improve the Uploader. You agree to receive such as part of your use of the Uploader.
AlcaCruz herein reserves the right to pre-screen, refuse and/or delete any content currently available through our Services. In addition, we reserve the right to remove and/or delete any such content that would violate this Agreement, or which would otherwise be considered offensive to other visitors, users and/or members.
AlcaCruz herein reserves the right to access, preserve and/or disclose member account information and/or content if it is requested to do so by law or in good faith belief that any such action is deemed reasonably necessary for: (a) Compliance with any legal process; (b) Enforcement of the Agreement; (c) Responding to any claim that contained content therein is in violation of any third party rights; (d) Responding to requests for customer service or; (e) Protecting the rights, property or safety of AlcaCruz, its visitors, users and members, including the general public.
You agree not to use in any way any automated system, including but not limited to: "robots," "spiders," or "offline readers," that accesses the Services in a manner that sends more request messages to the AlcaCruz servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding, AlcaCruz grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials.
You agree not to collect any personally identifiable information, including account names, from the Services, nor to use the communication systems provided by AlcaCruz (e.g., chat, comments, etc.) for any commercial solicitation.
You agree not to violate the Reasonable Person Standard of Conduct as interpreted and established by AlcaCruz. Thus, if there is any conduct that AlcaCruz in its sole discretion deems as being in violation of said Reasonable Person Standard, AlcaCruz reserves the right to immediately suspend or terminate the User Account of the unreasonable person and to ban said person from any future User Accounts. AlcaCruz’s authority is not reviewable by any Arbitrator nor any Judge in any jurisdiction. Provided that content and activity is legal, AlcaCruz remains the sole decision-maker of permissible content and activity on AlcaCruz’s Services.
AlcaCruz Services allow for Users to upload User Generated Content (hereinafter “UGC”). By submitting/uploading UGC, you are representing that you are the lawful owner of said UGC. All Users retain ownership of their UGC. When you submit UGC, you grant to AlcaCruz a non-exclusive, perpetual, global, royalty-free license to use your UGC. If AlcaCruz allows other users to access your UGC, you also grant those users the right to use, copy, modify, and create additional works.
If you upload content but you are not the legal content owner, AlcaCruz reserves the right to remove, block, erase, or take other legally permissible actions regarding the content. Complaints about UGC should be sent to firstname.lastname@example.org.
AlcaCruz herein reserves the right to include the use of security components that may permit digital information or material to be protected, and that such use of information and/or material is subject to usage guidelines and regulations established by AlcaCruz or any other content providers supplying content services to AlcaCruz. You are hereby prohibited from making any attempt to override or circumvent any of the embedded usage rules in our Services. Furthermore, unauthorized reproduction, publication, distribution, or exhibition of any information or materials supplied by our Services, despite whether done so in whole or in part, is expressly prohibited.
As a user of AlcaCruz Services, you may cancel or terminate your account, associated email address and/or access to our Services by submitting a cancellation or termination request to Legal@alcacruz.com.
You agree that AlcaCruz may, without any prior written notice, immediately suspend, terminate, discontinue and/or limit your account and access to any of our Services. The cause for such termination, discontinuance, suspension and/or limitation of access shall include, but is not limited to:
Any breach or violation of this Agreement or any other incorporated Agreement, laws, regulations and/or guidelines.
Requests from law enforcement or any other governmental agencies.
Interference, alteration and/or modification to our Services, or any part thereof.
Unexpected technical or security issues and/or problems.
Any extended periods of inactivity.
Any engagement by you in any fraudulent or illegal activities.
Nonpayment of any associated fees that may be owed by you in connection with your AlcaCruz or Cruz.TV account Services.
Furthermore, you herein agree that any and all terminations, suspensions, discontinuances, and or limitations of access for cause shall be made at our sole discretion and that we shall not be liable to you or any other third party with regard to the termination of your account and/or access to any of our Services.
The termination of your account with AlcaCruz may include any and/or all of the following:
The removal of any access to all or part of the Services.
The deletion of your password and any and all related information, data, files, and any such content that may be associated with or inside your account, or any part thereof.
The barring of any further use of all or part of our Services.
5. Copyright or Intellectual Property Infringement Claims Notice and Procedures
AlcaCruz respects the intellectual property of others, and we ask that our users do the same. With regard to appropriate circumstances and at its sole discretion, AlcaCruz may disable and/or terminate the accounts of any user who violates our Agreement and/or infringes the rights of others.
If you believe that your work has been duplicated in such a way that would constitute copyright infringement, or if you believe your intellectual property rights have been otherwise violated, you should provide to us the following information:
The electronic or the physical signature of the individual that is authorized on behalf of the owner of the copyright or other intellectual property interest.
A description of the copyrighted work or other intellectual property that you believe has been infringed upon.
A description of the location of the site which you allege has been infringing upon your work.
Your physical address, telephone number, and email address.
A statement, in which you state that the alleged and disputed use of your work is not authorized by the copyright owner, its agents or the law.
And finally, a statement, made under penalty of perjury, that the aforementioned information in your notice is truthful and accurate, and that you are the copyright or intellectual property owner, representative or agent authorized to act on the copyright or intellectual property owner's behalf.
The AlcaCruz Agent for notice of claims of copyright or other intellectual property infringement can be contacted as follows:
Attn: Copyright Agent
411 Borel Ave., Suite 510
San Mateo, California USA 94402
Please note that the DMCA provides that you may be liable for damages (including costs and attorney fees) if you knowingly misrepresent that material or activity is infringing. Please also note that the information provided in your copyright infringement notice may be provided to the person responsible for the allegedly infringing material.
If your Content was removed because it was allegedly infringing, and if you wish to challenge that determination, you may also send notification containing the following:
Your physical or electronic Signature.
A statement that you have a reasonable belief that the Content was removed as the result of a mistake.
Your contact information.
A statement that you consent to Federal jurisdiction in the Northern District of California And,
A statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is submitted, AlcaCruz may send a copy of the counter-notice to the original complainant informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at AlcaCruz's sole discretion.
6. AlcaCruz Services Provided “AS IS” AND WITH NO WARRANTIES
AlcaCruz provides its users with live streaming content and Video On Demand content. Content includes, but is not limited to, esports, tournaments, live music, traditional sports, social and political commentary, and education. AlcaCruz also gives access to communication and social networking tools.
AlcaCruz does not assume any responsibility for any failure on its part to produce either live streaming content or Video On Demand. AlcaCruz also does not assume any responsibility or obligation for the timeliness, missed delivery, deletion and/or any failure to store user content, communication, or personalization settings, or production of advertised content.
ANY FAILURE TO LIVE STREAM CONTENT OR TO PRODUCE VIDEO ON DEMAND CONTENT, AND ANY FAILURE FALLING UNDER THIS SECTION OF THE AGREEMENT, WILL NOT BE CONSIDERED A DISPUTE OR A CLAIM AND WILL NOT GIVE RISE TO ANY CAUSE OF ACTION.
YOU HEREIN EXPRESSLY ACKNOWLEDGE AND AGREE THAT ALCACRUZ SERVICES ARE PROVIDED ON AN "AS IS" AND/OR "AS AVAILABLE" BASIS. ALCACRUZ, ALCACRUZ, INC. AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ALCACRUZ, ALCACRUZ INC. AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO SUCH WARRANTIES THAT: (a) ALCACRUZ SERVICES WILL MEET YOUR REQUIREMENTS; (b) ALCACRUZ SERVICES SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) THAT SUCH RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE ALCACRUZ SERVICES WILL BE ACCURATE OR RELIABLE; (d) QUALITY OF ANY PRODUCTS, SERVICES, ANY INFORMATION OR OTHER MATERIAL WHICH MAY BE PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICES WILL MEET YOUR EXPECTATIONS; AND (e) THAT ANY ERRORS CONTAINED IN THE SOFTWARE WILL BE CORRECTED.
ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY WAY OF ALCACRUZ SERVICES SHALL BE ACCESSED BY YOUR SOLE DISCRETION AND SOLE RISK, AND AS SUCH YOU SHALL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER AND/OR INTERNET ACCESS, DOWNLOADING AND/OR DISPLAYING, OR FOR ANY LOSS OF DATA THAT COULD RESULT FROM THE DOWNLOAD OF ANY SUCH INFORMATION OR MATERIAL.
NO ADVICE AND/OR INFORMATION, WHETHER WRITTEN OR ORAL, THAT MAY BE OBTAINED BY YOU FROM ALCACRUZ OR BY WAY OF OR FROM OUR SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
A SMALL PERCENTAGE OF SOME USERS MAY EXPERIENCE SOME DEGREE OF EPILEPTIC SEIZURE WHEN EXPOSED TO CERTAIN LIGHT PATTERNS OR BACKGROUNDS THAT MAY BE CONTAINED ON A COMPUTER SCREEN OR WHILE USING OUR SERVICES. CERTAIN CONDITIONS MAY INDUCE A PREVIOUSLY UNKNOWN CONDITION OR UNDETECTED EPILEPTIC SYMPTOM IN USERS WHO HAVE SHOWN NO HISTORY OF ANY PRIOR SEIZURE OR EPILEPSY. SHOULD YOU, ANYONE YOU KNOW OR ANYONE IN YOUR FAMILY HAVE AN EPILEPTIC CONDITION, PLEASE CONSULT A PHYSICIAN IF YOU EXPERIENCE ANY OF THE FOLLOWING SYMPTOMS WHILE USING OUR SERVICES: DIZZINESS, ALTERED VISION, EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT, OR CONVULSIONS.
THERE ARE SOME JURISDICTIONS WHICH DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OF EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS OF SECTIONS WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
7. Limitations of Liability and Release
YOU EXPLICITLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT ALCACRUZ, ALCACRUZ INC. AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES WHICH MAY BE RELATED TO THE LOSS OF ANY PROFITS, GOODWILL, USE, DATA AND/OR OTHER INTANGIBLE LOSSES, EVEN THOUGH WE MAY HAVE BEEN ADVISED OF SUCH POSSIBILITY THAT SAID DAMAGES MAY OCCUR, AND RESULT FROM:
THE USE OR INABILITY TO USE OUR SERVICE.
THE COST OF PROCURING SUBSTITUTE GOODS AND SERVICES.
UNAUTHORIZED ACCESS TO OR THE ALTERATION OF YOUR TRANSMISSIONS AND/OR DATA.
STATEMENTS OR CONDUCT OF ANY SUCH THIRD PARTY ON OUR SERVICE.
AND ANY OTHER MATTER RELATED TO OUR SERVICE.
In the event you have a dispute, you agree to release AlcaCruz, AlcaCruz Inc., and their subsidiaries, affiliates, officers, directors, employees, agents, co-branders, licensors, partners and any other third parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected or unsuspected, disclosed and undisclosed, arising out of or in any way connected to such dispute.
8. Force Majeure
AlcaCruz shall not be liable for any delay or failure to perform resulting from causes outside AlcaCruz’ reasonable control, including without limitation, any failure to perform hereunder due to unforeseen circumstances or cause beyond AlcaCruz’ control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
9. Risk of Loss
You bear all risk of loss for accessing or completing the download of any Service and for any loss of any Service that you have accessed or downloaded, including any loss due to a file corruption or device crash. Any Service may be available for limited periods of time, and/or subject to other access restrictions.
Services may become unavailable due to potential content provider licensing restrictions or other reasons. AlcaCruz will not be liable to you if any Service is or becomes unavailable for download or access.
10. Subscriptions and Payments
AlcaCruz only sells its Services to users who can legally make purchases with a credit card. If you are between the ages of 13 years and 18 years, you may only purchase Services with the permission of a Parent or Guardian.
AlcaCruz reserves the right to refuse or cancel orders or terminate accounts at any time in its sole discretion.
AlcaCruz may offer certain Services in connection with a subscription basis with recurring payments (“Subscription Services”). Subscription Services may renew automatically, with payment due prior to each renewal. You agree to pay your subscription fee in advance of receiving any such Subscription Service.
You are responsible for all charges incurred under your account. You must affirmatively consent to the new payment terms in order to continue receiving the Subscription Services. If you do not affirmatively consent, your subscription will be cancelled. If you choose a Subscription Service, you hereby grant AlcaCruz permission to automatically charge the subscription fee to your chosen payment method at the beginning of each applicable payment period.
AlcaCruz reserves the right to discontinue or modify any subscription fee payment option. If AlcaCruz discontinues or modifies a subscription payment option, we will provide reasonable notice of such discontinuance or modification. AlcaCruz reserves the right to deactivate Subscription Services to your account if payment is past due, regardless of the dollar amount.
Your access to the Subscription Services will not be established until AlcaCruz has verified that the credit card or other payment information you provide AlcaCruz for payment is accurate and that your payment method account is in good standing.
You further agree that AlcaCruz may charge any other applicable fees for the Subscription Service that you agree to, including any early termination fee, to your payment method.
You are required to keep your billing information current, complete and accurate and notify AlcaCruz if your selected payment method is cancelled.
You may choose not to renew your Subscription Service at any time by sending notice to AlcaCruz. Your cancellation is effective at the end of the current subscription term.
AlcaCruz does not offer any returns, exchanges, refunds or credits.
You are subject to all terms and conditions of the payment processor(s) and the payment method(s) you choose. By submitting an order through the AlcaCruz Service, you authorize AlcaCruz’s designated payment processor, to charge the account you specify for the purchase amount.
11. Legal – Dispute Procedures, Arbitration, and Class Action Waiver
THIS SECTION MAY AFFECT YOUR RIGHT TO FILE A LAWSUIT. PLEASE READ CAREFULLY.
This section addresses BINDING ARBITRATION and CLASS ACTIONS. The section applies to you if you live within the United States. The section may or may not apply to you if you live outside of the United States yet still avail yourself of AlcaCruz Services.
All users of AlcaCruz Services shall act in good faith. Before BINDING ARBITRATION is pursued, all users and all AlcaCruz personnel shall act in good faith to resolve any and all disputes. The good faith actions will commence for a period of 60 calendar days in order to reach resolution.
If the parties are not able to reach resolution, and if BINDING ARBITRATION is determined to be necessary, either party may unilaterally initiate BINDING ARBITRATION.
All claims arising from this Agreement shall be heard and decided by an Arbitrator. Said Arbitrator shall have exclusive authority to resolve any dispute arising from this Agreement. That is, the Arbitrator, and not a Federal, State, County, City, or Local judge shall have any authority in a claim arising from this Agreement. This exclusive authority is absolute unless both parties agree in writing to not arbitrate but, instead, to take the dispute to a Federal or State level judge.
Exclusive authority allows the Arbitrator to settle all disputes arising from the Agreement, including but not limited to, disputes about Agreement formation, Agreement enforceability, and Agreement interpretation.
All parties agree to be bound by the Arbitrator’s decision. The Arbitrator’s decision may be entered as a judgment in any Federal or State court.
Arbitration will take place in San Mateo county, San Francisco or San Jose, California, USA.
Class Action Waiver: The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis.
YOU AND ALCACRUZ 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.
If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception - Litigation of Intellectual Property Claims: Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court that asserts claims for patent infringement or invalidity, copyright infringement, moral rights violations, trademark infringement, and/or trade secret misappropriation, but not, for clarity, claims related to the license granted to you for the AlcaCruz Service under this Agreement.
30 Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the "Binding Arbitration," "Location," and "Class Action Waiver" paragraphs above by sending written notice of your decision to opt-out to the following address:
411 Borel Avenue, Suite 510
San Mateo, CA 94402
The notice must be sent within 30 days of first accessing or using AlcaCruz Services and agreeing to these terms. Otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, AlcaCruz also will not be bound by them.
12. Interstate Communication & Global Compliance
Upon registration, you hereby acknowledge that by using AlcaCruz to send electronic communications, which would include, but are not limited to, email, searches, instant messages, uploading of files, photos, and/or videos, you will be causing communications to be sent through our computer network. Therefore, through your use, and acceptance of this Agreement, you are acknowledging that the use of this Service shall result in interstate transmissions.
Cautions for Global Use and Export and Import Compliance
Due to the global nature of the internet, through the use of our network you agree to comply with all laws and rules relating to online conduct and that which is considered acceptable Content. Uploading, posting and/or transferring of software, technology and other technical data may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws, statutes and regulations, including, but not limited to, the Export Administration Regulations and the sanctions control program of the United States (http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx). Furthermore, you state and pledge that you:
Are not on the list of prohibited individuals which may be identified on any government export exclusion report (http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm) nor a member of any other government which may be part of an export-prohibited country identified in applicable export and import laws and regulations.
Agree not to use our website network Services for any military, nuclear, missile, chemical or biological weaponry end uses that would be a violation of the U.S. export laws.
Agree not to post, transfer nor upload any software, technology or any other technical data which would be in violation of the U.S. or other applicable export and/or import laws.
All users herein agree to insure and hold harmless AlcaCruz, AlcaCruz Inc., and our Subsidiaries, Affiliates, agents, employees, officers, partners and/or licensors and not liable for any claim or demand, which may include, without limitation, reasonable attorney fees made by any third party which may arise from any content a member or user of our site may submit, post, modify, transmit or otherwise make available through our Services, the use of AlcaCruz Services or your connection with these Services, your violations of the Terms of Service and/or your violation of any such rights of another person.
14. Contributions to AlcaCruz
AlcaCruz may provide a forum for our users and members to contribute feedback. If you submit ideas, documents, suggestions and/or proposals ("Contributions") to our site, you acknowledge and agree that:
Your contributions do not contain any type of confidential or proprietary information.
AlcaCruz shall not be liable or under any obligation to ensure or maintain confidentiality, expressed or implied, related to any Contributions.
AlcaCruz shall be entitled to use or not use, make use of and/or disclose any such Contributions in any manner.
AlcaCruz is under no obligation to provide any form of compensation for any Contributions.
15. Use and Storage General Practices
You herein acknowledge that AlcaCruz may set up any such practices and/or limits regarding the use of our Services, including without limitation, maximum number of days that any email, message posting or any other uploaded content shall be retained by AlcaCruz, Inc, maximum number of email messages that may be sent and/or received by any user, the maximum volume or size of any email message that may be sent from or may be received by an account on our Service, the maximum disk space allowable that shall be allocated on AlcaCruz servers on the member's behalf, and/or the maximum number of times and/or duration that any member may access our Services in a given period of time.
In addition, you also agree that AlcaCruz has absolutely no responsibility or liability for the removal or failure to maintain storage of any messages and/or other communications, videos, or content maintained or transmitted by our Services.
You also herein acknowledge that we reserve the right to delete or remove any account that is no longer active for an extended period of time.
Furthermore, AlcaCruz reserves the right to modify, alter and/or update these general practices and limits at our discretion.
Any messenger service (which may include any web-based versions) may allow you and the individuals with whom you communicate with the ability to save your conversations in your account located on AlcaCruz's servers. You may be able to access and search your message history from any computer with internet access. You also acknowledge that others have the option to use and save conversations with you in their own personal account on AlcaCruz.
By agreeing to this Agreement, you consent to allow AlcaCruz to store any and all communications, videos, and content on its servers.
Any correspondence or business dealings with, or the participation in any promotions of, advertisers located on or through our Services, which may include the payment and/or delivery of such related goods and/or Services, and any such other term, condition, warranty and/or representation associated with such dealings, are and shall be solely between you and any such advertiser. Moreover, you herein agree that AlcaCruz shall not be held responsible or liable for any loss or damage of any nature or manner incurred as a direct result of any such dealings or as a result of the presence of such advertisers on our website.
17. Proprietary Rights
You acknowledge and agree that AlcaCruz Services and any essential software that may be used in connection with AlcaCruz Services ("Software") contains AlcaCruz proprietary and confidential information and materials, and are protected by applicable intellectual property rights and other laws.
Furthermore, you acknowledge and agree that any Content which may be contained in any advertisements or information presented by and through our Services or by advertisers may be protected by copyrights, trademarks, patents or other proprietary rights and laws.
Therefore, except for that which is expressly permitted by applicable law or as authorized by AlcaCruz or such applicable licensor, you agree not to alter, modify, lease, rent, loan, sell, distribute, transmit, broadcast, publicly perform and/or create any plagiaristic works which are based on AlcaCruz Services (e.g. Content or Software), in whole or part.
18. Trademark Rights
You acknowledge and agree that all of the AlcaCruz trademarks, copyrights, trade names, service marks, and other AlcaCruz logos and any brand features, and/or product and service names are trademarks and remain the property of AlcaCruz. You herein agree not to display and/or use in any manner the AlcaCruz logo or marks without obtaining AlcaCruz's prior written consent.
19. No Third Party Beneficiaries
You acknowledge and agree that there are no third-party beneficiaries to this Agreement. Nothing in these Agreement shall confer any third-party rights or benefits.
20. General Legal
This Agreement constitutes the entire Agreement between you and AlcaCruz and shall govern the use of our Services, superseding any prior version of this Agreement between you and us with respect to AlcaCruz Services. You may also be subject to additional terms and conditions that may apply when you use or purchase certain other AlcaCruz Services, affiliate Services, third-party content or third-party software.
Choice of Law and Forum
Except as expressly provided herein, both you and AlcaCruz agree that the relationship between the parties shall be governed by the laws of the state of California without regard to its conflict of law provisions and that any and all claims, causes of action and/or disputes, arising out of or relating to the Agreement, or the relationship between you and AlcaCruz, shall be filed within the courts having jurisdiction within the County of San Mateo, California or the U.S. District Court, Northern District of California, San Francisco or San Jose Division. You and AlcaCruz agree to submit to the jurisdiction of the courts as previously mentioned and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
No Waiver and Severability of Terms
If AlcaCruz fails to exercise or enforce any right or provision of this Agreement, such failure shall not constitute a waiver of such right or provision. If any provision of this Agreement is held to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and all other provisions of the Agreement remain in full force and effect.
No Right of Survivorship and Non-Transferability
You acknowledge and agree that your account is non-transferable and any rights to your ID and/or contents within your account shall terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated, and all contents therein permanently deleted.
Statute of Limitations
You acknowledge and agree that regardless of any statute or law to the contrary, any claim or action arising out of or related to the use of our Services or the Agreement must be filed within Four year(s) after said claim or cause of action arose or shall be forever barred.
Please report any and all violations of this Agreement to AlcaCruz as follows:
411 Borel Ave., Suite 510
San Mateo, California 94402