LAST UPDATED FEBRUARY 18, 2019
INFORMATION WE COLLECT
Personal Information. The types of information we collect that identify you or relate to you as an individual (“Personal Information“) may include things such as the following:
1. Name, date of birth, mailing address, telephone number, e-mail address, username and password (for account administration), when you supply this information voluntarily;
2. Device ID, including IP address, which are automatically collected and, while they don’t identify you as an individual, do identify a particular computer or mobile device;
3. Financial account information and other payment information (that you submit to us for order processing);
4. Additional Personal Information you may submit as necessary for creating an account or for the administration of particular promotional events, such as sweepstakes or contests;
5. The content or material you submit for inclusion in advertisements to be created via the Services if such material includes pictures of other information which may identify you or others;
6. The content or material we may gather from your or third-party website(s) or social media pages for inclusion in advertisements to be created via the Services if such material includes pictures of other information which may identify you or others, all of which will be shown to you for your approval prior to being included in any advertisements for publication.
Other Information. Other types of data will also be collected periodically, such as:
1. Type of browser and operating system, mobile application usage data, and aggregated information such as “click stream” information which means entry and exit points (including referring URLs or domains), traffic statistics, page views, and impressions, all of which are collected automatically;
2. Demographic information you choose to submit and which we may combine on an anonymous basis with similar information from other users;
3. Location-based data which may be generated by your device;
5. Device Information – Device type and operating-system identification.
HOW WE USE INFORMATION
1. Process and manage your purchase and use of our products and services;
2. Respond to your inquiries or requests, and to post your comments or statements on message boards, in our online forums or on our social media accounts;
3. Create and deliver personalized promotions based on your purchases and other interactions with us;
4. Send you communications about offerings from Waymark and our affiliated companies;
5. Enable your use of any sharing functions via our Services, such as making drafts of advertisements available for temporary online viewing and approval by your colleagues or clients —when you use this functionality, you acknowledge and agree that you are permitted to use and provide us with the necessary contact information for any person(s) with whom you wish to share access for approval purposes;
6. Improve our Site and Services, including to perform data analysis, audits, fraud monitoring and prevention, identify usage trends, determine the effectiveness of our promotional campaigns, and to operate and expand our business activities.
USE OR SHARING OF PERSONAL INFORMATION
Except as set forth below, we will not knowingly disclose your Personal Information to anyone outside of Waymark and our related companies.
• To Perform Services For You
We may disclose your Personal Information to third-party service providers to provide us with services such as website hosting, professional services, including information technology services and related infrastructure, customer service, e-mail delivery, product shipping, payment processing, auditing and other similar services necessary to the Site and any Services your request or products you order.
• Corporate Transactions or Events
We may disclose your information to a third party in connection with a corporate reorganization, merger, sale, joint venture, assignment, transfer or other disposition of all or any portion of our business, assets or stock, including in connection with any bankruptcy or similar proceedings.
• Compliance with Law
We may use or disclose your Personal Information as we deem necessary or appropriate: (1) under applicable law, including laws outside your country of residence; (2) to respond to requests from public and government authorities including public and government authorities outside your country of residence; (3) to comply with subpoenas and other legal processes; (4) to pursue available remedies or limit damages we may sustain; (5) to protect our operations or those of any of our affiliated companies; (6) to protect the rights, privacy, safety or property of Waymark or others; and (7) to enforce our terms and conditions.
• Third Party Marketing
We may, from time to time, share the information you provide to us with trusted third-party marketing partners that we believe offer products or services that may be of interest to you. If you would like us to stop providing your information to our third-party marketing partners, you may opt-out from any future sharing by emailing us at email@example.com, or sending a letter to us at 1555 Broadway Street Floor 3 Detroit, MI 48226.
USE OR SHARING OF OTHER INFORMATION
Non-personal information may be used for any purpose not prohibited by law. For example, we may collect, compile, store, publish, promote, report, sell, or otherwise disclose or use any and all information that does not identify an individual (or that has been modified to remove individual identification).
COOKIES, WEB BEACONS AND ONLINE ADVERTISING
• What Are Cookies?
Waymark and its agents use small text files called cookies, (collectively, “Cookies”). Cookies are small pieces of data that we and our agents place in your computer’s browser to store your preferences. Cookies are not themselves personally identifiable, but may be linked to Personal Information that you provide to us through your online interaction with us.
• Your Control of Cookies
Web browsers allow some control of most Cookies through the browser settings. To find out more about Cookies, including how to see what Cookies have been set on your device and how to manage and delete them, visit http://www.allaboutcookies.org
. Please understand, however, if you disable Cookies,some features of the Waymark Site or Services may not work as well (or at all) for you.
• Online Advertising
These technologies may enable us (or third-party advertising services we work with) to learn which advertisements bring users to the Waymark Site and Services. They also may enable us (or third-party advertising services we work with) to track the actions of users online over time and across different web sites or platforms to measure statistics of our marketing efforts, and to deliver electronic advertisements that may be more relevant to individual consumers and that will improve the consumer experience. As of this time, our Site is not configured to respond to do-not-track signals from a browser. For information about how tracking works for online advertising purposes, and what happens when you elect a do-not-track option, visit http://www.aboutads.info/choices
. In addition, some third-party businesses may provide a mechanism to opt-out of their technology. For more information about the opt-out process, visit the Network Advertising Initiative website, available at: http://www.networkadvertising.org/managing/opt_out.asp
SOCIAL NETWORKING AND THIRD-PARTY SITES
Under California Civil Code sections 1798.83-1798.84, also known as the “Shine the Light Law,” any of our users who are California residents are entitled to request and receive once a year, free of charge, a notice from us describing what categories of personal customer information (if any) we shared with third parties or corporate affiliates for their direct marketing purposes during the preceding calendar year. If applicable, the notice will identify the categories of information shared, the names and addresses of the third parties and affiliates with which information was shared. If you are a California resident and would like to request a copy of this notice, please submit a written request to the following address: 1555 Broadway Street Floor 3 Detroit, MI 48226. In your request, please specify that you want a “California Privacy Rights Notice.” Please allow at least thirty days for a response.
The Waymark Site and Services are not intended for children under the age of 13. We will not knowingly collect any personally identifiable information from children under the age of 13. If we learn that we have obtained any personally identifiable information from a child under age 13, we will delete that information.
We strive to use reasonable safeguards to help prevent loss, misuse and unauthorized access, disclosure or modification of Personal Information provided or collected through the Waymark Site and Services. However, no system is perfect or can guarantee that unauthorized access or theft might not occur.
CHANGES AND UPDATES
Notice Regarding Dispute Resolution: These Terms contain provisions governing how any claims that may arise between you and Waymark will be resolved (see Legal Disputes and Arbitration Section below), including an obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit any claims you might have against us to binding arbitration, unless you opt-out in accordance with the Arbitration Section below.
RESPONSIBLE USE OF THE SITE
You may use the Site for lawful purposes and in accordance with these Terms. No other use is permitted. Without limiting the foregoing, you may not use the Site:
(a) for any purpose that is unlawful or prohibited by these Terms;
(b) to cause harm or damage to any person or entity;
(c) to interfere with the proper operation of the Site;
(d) to upload, post or transmit any material that violates any law, infringes on the rights of any third party or contains defamatory, libelous, abusive, obscene or otherwise objectionable material (as determined by Waymark in its sole discretion) or viruses or other malware which may harm the operation of the Site or anyone else’s computer;
(e) to create an account for the purpose of making a competitive assessment of our services or incorporating any information or other content from the Site into any service you offer to third parties other than use of Productions for which you purchase a subscription or other license;
(f) to engage in bad online citizenship, such as spam our users, distribute spyware or viruses, collect personal information without disclosing and abiding by your own posted privacy, or attempt to reverse engineer or hack into our systems;
(g) to access or scrape the Site by any automated means unless you are a search engine crawling the Site for the sole purpose of creating a publicly accessible search index; upload or download an unreasonably large amount of material at one time; or bypass any technical protections, storage limits or throttling that we institute; or
(h) to reverse engineer, decompile, disassemble, create derivative works of, remove the copyright designation from, copy, sublicense or distribute any content, application or software code associated with the Site.
CONTENT USAGE RIGHTS AND LICENSES
(a) Use of the Auto Personalize tool.
For your convenience, Waymark offers the optional Auto Personalize tool which will populate a template with your content from the internet. By using this tool, you are directing Waymark to search your website, Yelp profile, Facebook page, Google My Business profile, and Zillow listing. Waymark will retrieve from these pages: information about your business, including location, industry, phone number; images; customer reviews; and various other media assets. We attempt to retrieve from these sources only the content that you have uploaded or over which you otherwise have uncontested ownership. However, it is your responsibility to review the content after we have retrieved it and to ensure that it is content to which you have an ownership right or express permission for inclusion in your Production. Waymark does not collect information from these sources in either a “bulk” or “crawling” manner, but only at your specific direction through your choosing to use the Auto Personalize tool. The Waymark Site and our video ad product will work without Auto Personalize and you may choose not to use it. Once you have used Auto Personalize, we will store any content which has been retrieved from the sites mentioned above in order for you to use it again in future Productions, but we will delete this data if you directed us to do so.
(b) Content Obtained From You, Including from Web Site(s), Social Media Page(s), and Online Directory Pages Featuring You.
You are solely responsible for all Content submitted directly by you or obtained by us from searching website(s), social media page(s), and online directory pages featuring you, all of which is referred to as “User Content”. You warrant and represent that you own all right, title and interest, or have sufficient permissions to such User Content for creation of any Productions via the Site and subsequent use of such Productions. You are responsible to review and approve any Productions created via the Site to assure that you have the necessary rights or permissions for your anticipated use of such Productions and all User Content reflected therein, including but not limited to User Content obtained by us from searching web sites, social media pages, and online directories we believe are associated with you.
You further warrant and represent that your User Content does not contain any material or content that is unlawful, harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, indecent, inflammatory, libelous, tortious, hateful, or racially, ethnically or otherwise objectionable, or invasive of another's rights including but not limited to rights of copyright, celebrity, publicity, privacy and intellectual property, or otherwise in violation of any federal, state or local law, rule or regulation. Creation of any Productions incorporating your User Content does not indicate that we accept, approve, or endorse such User Content or that such User Content is in compliance with any applicable laws or these Terms or otherwise absolve you of any liability or harm arising from the use of such User Content.
We have no obligation, but reserve the right, to monitor, flag, delete, or refuse to reproduce any User Content we believe may be in violation of these Terms, and to cancel any order(s) based on such User Content. Under no circumstances will Waymark be liable in any way for any loss of any User Content. The Site is not intended as a storage depository for User Content. You are responsible for retaining copies of your User Content.
You understand and agree that you alone are responsible for making sure that the quality of your User Content is sufficient to reproduce in satisfactory fashion for any Production(s) to be created via the Site. You will be given opportunities to review and approve any proposed Productions during the ordering process. You are solely responsible for whether the finished Productions are appropriate for your purposes. WAYMARK MAKES NO WARRANTY OF ANY KIND WHATSOEVER, THAT ANY PRODUCTION CREATED VIA THE SITE WILL BE APPROPRIATE OR EFFECTIVE FOR ANY PURPOSE. SEE ADDITIONAL DETAILS BELOW UNDER INDEMNITY, DISCLAIMERS, AND LIMITS ON LIABILITY.
You retain ownership of all User Content, and you grant us and our designees all necessary right and permission to use your User Content as part of creating any Productions you request and for placing any such Productions online pursuant to any subscription(s) you may order via the Site. You also agree that we may use any completed Productions (s) for our own promotional purposes to advertise our own Site and services, in perpetuity, without restriction of any kind.
(c) Content Furnished by Us.
Any Content furnished by us for inclusion in Productions to be created via the Site belongs either to us or our third-party licensors. In any event, you acknowledge and agree that you obtain no rights in or to any such Content other than the right to have such Content included in any such Production(s). Any rights not specifically granted are retained by us and/or our third-party licensors. Without limiting the foregoing, you specifically acknowledge and agree that you cannot do any of the following with any Content furnished by us which is not your own User Content:
i. Alter the Content in any way;
ii. sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content apart from the finished Production(s) you obtain from us via the Site and then only with a reseller account;
iii. use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
iv. remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
v. use the Content in a fashion that is considered by Waymark or under applicable law to be pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring any person or property reflected in the Content disrepute;
vi. use any Content portraying any person depicted therein (a “Model”) in a way that a reasonable person would find offensive, including but not limited to depicting a Model: a) in connection with pornography, "adult videos", adult entertainment venues, escort services, dating services, or the like; b) in connection with the advertisement or promotion of tobacco products; c) as endorsing a political party, candidate, elected official, or opinion; d) as suffering from, or medicating for, a physical or mental ailment; or e) engaging in immoral or criminal activities;
vii. use Content in a manner that competes with Waymark’s business including, but not limited to, displaying Content in any format (including thumbnails) for download or export on a website or offering Content for sale;
viii. incorporate the Content in any product that results in a re-distribution or re-use of the Content is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
ix. to the extent that source code is contained within the Content, reverse engineer, decompile, or disassemble any part of such source code;
x. use or display the Content in an electronic format that is intended to enable the Content to be downloaded, exported or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement; or
xi. use or display Content in such a manner that gives the impression that the Content was created by you or a person other than the copyright holder of the Content.
(d) Usage Rights in Productions.
With respect to Productions created via the Site with your User Content, the following usage terms apply:
i. If you do not approve a particular Production for use and pay for a subscription or download license for that Production, you do not obtain any use rights of any kind for that Production.
ii. If you pay only for a subscription for a particular Production, we will place the Production for you online per the terms of your subscription package, but you obtain no other usage rights of any kind. For advertising subscriptions, we guarantee campaign execution as described by the package you select. We will issue pro-rated refunds if we are unable to meet guarantees for any reason, including if the ad platform you selected (eg Facebook, Instagram) decline to run your campaign. We provide unlimited, free edits and updates to Productions that we are distributing for you as part of an advertising subscription.
iii. If you pay for a download license for a particular Production, you will have the ability to use the covered Production(s) in any way you wish online and may use Productions labeled “TV” or “TV Ready” for local & regional television broadcast in the United States. No use is allowed in any other medium. No part of the Production(s) we have furnished (that is, anything other than your pre-existing User Content) may be (A) altered, or (B) used in any manner apart from the Production. Waymark is not obligated to offer edits or updates once you have purchased a Production, but we may choose to do so at our sole discretion, for your convenience.
iv. All purchases on the Site are final and non-refundable. Subscriptions are auto-renewing on the billing cycle that you select at purchase. If you choose to stop a subscription, your service will end and you will not be billed again. If we are unable to bill you via the method of payment you provided, and which our 3rd-party payment processor stores securely, we will immediately pause your subscription services pending successful payment. We will re-try billing in accordance with industry best practices for your convenience, and we may notify you that your subscription is at risk of automatic cancellation. If we do not receive payment within the next billing cycle, we will automatically cancel your subscription pending later re-activation.
v. If you use the Site to create Productions for client(s) on whose behalf you are working , you and they will have the ability to use the covered Production(s) in any way you or they wish online and may use Productions labeled “TV” or “TV Ready” for local & regional television broadcast in the United States. No use is allowed in any other medium. No part of the Production we have furnished (that is, anything other than your pre-existing User Content) may be (A) altered, or (B) used in any manner apart from the Production. You must have a reseller account in order to create Productions for clients.
vi. In all cases of completed Production(s) you have approved and paid for, we may use such Productions (s) for our own promotional purposes to advertise our own Site and services, in perpetuity, without restriction of any kind.
vii. If you (or your clients, if applicable) violate any of these Terms or are otherwise barred by use from using the Site, any usage rights previously granted to you in any Productions will immediately cease.
(e) Usage of TV Templates.
Our TV Templates are made with the videographic specifications for the majority of broadcast carriers within the United States and for display on most television sets. However, we cannot guarantee that they meet the specifications of any broadcast, over-the-top, or similar carrier that is not in line with this majority; nor can we guarantee proper display on all television or display screens. Moreover, most music tracks in our templates are licensed for local and regional broadcast, expressly excluding national broadcast, within the United States only and not for use outside of the United States. Your purchase of a video using the templates marked “TV Templates” is made as-is and in acknowledgement and acceptance of these limitations and we make no further warrant of usability outside of these specific cases.
PROVISION OR SUSPENSION/WITHDRAWAL OF THE SITE
You understand and agree that: (a) the Site may change from time to time without notice to you. Any new feature that augments, enhances or modifies the current Site is subject to these Terms; (b) we may decline to provide access to the Site or stop (permanently or temporarily) providing the Site (or any feature, program or content within the Site) to you or other users at our sole discretion, without notice or liability to you (provided that if you have prepaid for any subscription service – and provided that the cessation of service to you is not due to any default or breach by you – you will continue to be entitled either to the completion of your paid-for online placements of Productions created via the site, or a pro-rated refund to reflect the undelivered online impressions); and (c) if we disable access to your account, you may be prevented from accessing the Site, your account details, or any files or other content which are contained in your account.
SOCIAL MEDIA ACCESS
If you use a mobile device to access the Site, the following additional terms and conditions (“Mobile Terms”) you acknowledge and agree that: (a) you are solely responsible for all message and data charges that apply to use of your mobile device to access the Site; and (b) all such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. You further understand that service may not be available in all areas at all times and may be affected by product, software, coverage or service changes made by your mobile service provider or otherwise.
UNITED STATES SITE
The Site is owned and operated by us in the United States. You are responsible for compliance with any local laws if you access or use the Site from anywhere else. All prices displayed on the Site are quoted in U.S. Dollars and are valid and effective only in the United States.
INDEMNITY, DISCLAIMERS AND LIMITS ON LIABILITY
You agree to indemnify, defend, and hold harmless Waymark, its affiliated companies (collectively “Waymark”), and their respective affiliates, officers, directors, shareholders, employees, contractors, licensors, licensees, agents, and representatives (the “Covered Entities”) against all liability, claims, costs, damages, settlements, and expenses (including interest, penalties, attorney fees and expert witness fees) (“Liabilities”) incurred by any Covered Entity in any way arising out of or relating to your breach of these Terms or our other policies referenced in these Terms, including but not limited to any use of any of your User Content that infringes the rights of third parties. Waymark reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and if Waymark assumes defense and control, you agree to cooperate with our defense of an applicable claim. You agree not to settle any matter related to the Site, including indemnified claims, without our prior written consent. We will use reasonable efforts to inform you of any indemnified matter.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COVERED ENTITIES MAKE NO WARRANTY OF ANY KIND ABOUT THE SITE OR ANY PRODUCTIONS CREATED VIA THE SITE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON- INFRINGEMENT. THE COVERED ENTITIES HAVE NOT MADE ANY REPRESENTATION AS TO THE POTENTIAL BENEFITS YOU MAY REALIZE BY USING THE SITE OR ANY PRODUCTIONS CREATED VIA THE SITE. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT THE SUCCESS OF ANY ADVERTISING OR PROMOTIONAL CAMPAIGN DEPENDS ON A NUMBER OF FACTORS BEYOND THE CONTROL OF ANY PARTY, AND THAT THE EFFECTIVENESS OF ANY SUCH CAMPAIGN USING ANY PRODUCTION(S) CANNOT BE GUARANTEED. THE SITE AND ALL PRODUCTIONS ARE PROVIDED AS IS, WITH ALL FAULTS, AND AS AVAILABLE. THE COVERED ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING THOSE MENTIONED ABOVE.
THE COVERED ENTITIES ARE NOT RESPONSIBLE FOR ANY CONTENT PROVIDED BY A THIRD PARTY OR BY YOU OR ANYTHING ACCESSED VIA ANY LINKS TO THIRD PARTY WEBSITES, SERVICES, OR SOFTWARE. THE COVERED ENTITIES UNDERTAKE NO OBLIGATION TO ENFORCE THEIR POLICIES OR RIGHTS AGAINST ANY THIRD PARTY. YOU BEAR ALL RISKS ASSOCIATED WITH USING THIRD PARTY LINKS, WEBSITES, ETC. THE COVERED PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR THE CONDUCT OF ANY USER OF THE SITE.
LIMITATIONS ON LIABILITY
THE COVERED ENTITIES SHALL NOT BE LIABLE FOR (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, STATUTORY DAMAGES OR PENALTIES, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION), EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES, OR (B) LOSS OF OR DAMAGE TO REPUTATION ARISING IN CONNECTION WITH, OUT OF, OR AS A RESULT OF (I) THESE TERMS OR SITE OR SERVICES, AND (II) ANY ACTS OR OMISSIONS OF ANY OF THE COVERED ENTITIES IN CONNECTION WITH THESE TERMS OR THE SITE OR SERVICES. THE MAXIMUM REMEDY AVAILABLE TO YOU UNDER THESE TERMS AND IN CONNECTION WITH THE SITE AND SERVICES IS REIMBURSEMENT OF ANY AMOUNTS YOU HAVE PAID TO US DURING THE SIX MONTHS IMMEDIATELY PRIOR TO ANY CLAIM.
EXCEPTIONS TO DISCLAIMERS AND EXCLUSIONS OF DAMAGES
If you live in a jurisdiction that does not allow disclaimer of warranties or exclusion of damages, the foregoing disclaimers and exclusions may not apply to you. For New Jersey residents, the limitations set forth above are inapplicable where attorneys’ fees, court costs, or other damages are mandated by statute.
LEGAL DISPUTES AND ARBITRATION AGREEMENT
INITIAL DISPUTE RESOLUTION
We are available by email at firstname.lastname@example.org to address any concerns you may have regarding your use of the Site. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
TERMS OF SERVICE AND BINDING ARBITRATION AGREEMENT
If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 15.1 above, then either party may initiate binding arbitration. All claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Site shall be finally settled by binding arbitration administered by JAMS on a non-confidential basis in accordance with the provisions of its then-effective rules, including its streamlined procedures, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to any claim that all or any part of these Terms of Service is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The procedures and rules of the Federal Arbitration Act shall exclusively govern the interpretation and enforcement of this arbitration provision and the parties hereby reject, waive and disclaim the application of any state Arbitration Act.
The JAMS Rules governing the arbitration may be accessed at https://www.jamsadr.com/rules-streamlined-arbitration/
, or by calling JAMS at 1.800.352.5267. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Waymark will pay the additional cost. A request for payment of fees should be submitted to JAMS along with your form for initiating the arbitration, and Waymark will make arrangements to pay all necessary fees directly to JAMS. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
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. 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 – SMALL CLAIMS COURT CLAIMS
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
EXCEPTION – SMALL CLAIMS COURT CLAIMS
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in the preceding three paragraphs by sending written notice of your decision to opt-out to the following address: 1555 Broadway, 3rd Floor, Detroit, MI 48226. The notice must be sent within thirty (30) days of registering to use the Site, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those Sections. If you opt-out of these arbitration provisions, Waymark also will not be bound by them.
EXCLUSIVE VENUE FOR LITIGATION
Solely to the extent the arbitration provisions set forth above do not apply, or for purposes of either party enforcing an award granted to it pursuant to arbitration, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Detroit, Michigan (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Detroit, Michigan for any litigation other than small claims court actions. The Parties irrevocably consent to personal jurisdiction in Detroit, Michigan for any litigation and hereby waive, for all purposes, their right to challenge the lack of personal jurisdiction of Detroit, Michigan over any litigation arising in connection with, out of, or as a result of (a) these Terms or the Site, and (b) any acts or omissions of any of the Covered Entities in connection with these Terms or the Site.
TIMING OF CLAIMS
You must bring any claim you have against Waymark relating to these Terms or the Site within two years from the date of accrual of the applicable claim.
COPYRIGHT AND TRADEMARK
Unless otherwise noted, all materials appearing on the Site for public viewing are protected as the copyrights, trade dress, trademarks and/or other intellectual property of Waymark or its licensors. You may not remove or alter any copyright, trademark or other proprietary right notice in the Site. All rights not expressly granted are reserved
Waymark is strongly committed to respecting intellectual property and other rights. As set forth in the following paragraphs, we have a policy of responding to notices of alleged copyright and trademark infringement that comply with applicable laws, including the Digital Millennium Copyright Act in the United States, and terminating accounts of repeat infringers in appropriate circumstances. To report a problem other than copyright or trademark infringement, please email email@example.com. We may, in our sole discretion, limit, suspend, or terminate any user’s access or account, delay or remove Content, and take technical and legal steps to keep users from using the Site, if we think that they are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies (for example, and without limitation, circumventing temporary or permanent suspensions or harassing our employees or other users).
DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) POLICY
Waymark will respond to proper notifications of claimed copyright infringement with respect to material posted by users, and will take appropriate action including removing and disabling access to the allegedly infringing material. We also will, in appropriate circumstances, terminate the accounts of registered users whom we find to be repeat infringers. We also may, in our discretion, suspend and/or terminate the account of any registered user who infringes another’s intellectual property right, whether or not there is repeat infringement.
If you believe your copyright has been infringed, you should submit notice to:
1555 Broadway Street, 3rd Floor
Detroit, MI 48226
Any such notice should include the following:
1. Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. 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.
3. 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 the service provider to locate the material.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an electronic mail address at which the complaining party may be contacted.
5. 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.
6. 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.
If a notice of copyright infringement has been filed against material posted by you, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information:
1. Your physical or electronic signature.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement by you under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of Maryland, U.S.A., if you reside outside of the U.S.A.), and that you will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
If we receive a valid counter-notification, we may reinstate the removed or disabled material in accordance with the DMCA.
Links provided within the Site will allow you to connect to other websites and services that are not under Waymark control. We do not endorse and are not responsible for the content of such websites and/or services. You access such websites and use such services at your own risk.
ERRORS AND INACCURACIES
The Site may contain errors, inaccuracies or omissions related to product descriptions, pricing, promotions, offers, availability and other information. If any information in the Site is inaccurate, incomplete or out of date, we reserve the right to correct, change or update such information or to cancel orders related to such information (including after you have submitted an order) without prior notice and issue a refund for amounts paid.
Waymark welcomes and may invite your feedback, but we want to be clear that providing feedback, comments, or ideas does not create claims on our business. If you choose to submit comments or ideas about the Site, including without limitation about how to improve the Site or our services (“Ideas”), you agree that your submission is gratuitous, unsolicited and without restriction and will not place Waymark under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Waymark does not waive any rights to use similar or related ideas previously known to Waymark, or developed by its employees, or obtained from sources other than you.
NOTICE TO CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: The provider of the Site is Waymark, Inc. To file a complaint regarding the Site or to receive further information regarding use of the Site, send a letter to the above address or contact Waymark via e-mail (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.
We will notify you of changes to these Terms by posting the amended terms on the Site at least thirty (30) days before the effective date of the changes. If you have provided us with your email address, we will also notify you of material changes to these Terms by sending an email at least thirty (30) days before the effective date of the changes to the email address you most recently provided to us. We encourage you to keep the email address you provide to us current, and to promptly notify us of any changes to your email address, so that you may receive any notices we send to you regarding material changes to these Terms. If you do not agree to the new Terms, you should stop using the Site, and if you are a registered user, you may cancel your account with us within the thirty (30) day period by contacting us at firstname.lastname@example.org, and you will not be bound by the new Terms. Otherwise, the new terms will take effect after thirty (30) days. Waymark employees do not have the right to modify these Terms orally or otherwise. If any employee of Waymark offers to modify the provisions of these Terms except using the process described above, he or she is not acting as an agent for Waymark or speaking on our behalf.
These Terms constitute a contract made solely over the Internet and you agree that the laws of the State of Michigan, without regard to principles of conflict of laws, will govern these Terms and any claim or dispute that has arisen or may arise between you and Waymark relating to use of any aspect of the Site.
These Terms of Service and the terms and conditions incorporated in these Terms of Service by reference are the entire agreement between you and Waymark.
Except as provided in the Arbitration provisions above, if any provision of these Terms is unenforceable, the validity and enforceability of the remaining provisions will not be affected.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms.
If you have questions regarding any of these Terms, you can call us at (313) 752-0558 or write to us care of Waymark Customer Service, email@example.com.