Terms of Service
The following Terms of Service (“Terms”) between you (“you” or “your”) and SANTA CRUZ MOUNTAINS MEDIA (also referred to as “we,” “our,” “us,” “SCM MEDIA,” or “SANTA CRUZ MOUNTAINS MEDIA”) describes the terms and conditions on which you may access and use the SCM MEDIA website located at SANTACRUZMOUNTAINS.COM (the “Site”) and related services including SCM MEDIA Content, as defined below, the “Services”). By accessing or using any of the Services, you acknowledge that you have read, understood and agree to be bound by these Terms.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE YOU LAST ACCESSED OR USED THE SERVICES. BY USING ANY PART OF THE SERVICES, YOU AGREE TO THESE TERMS.
Notice of Agreement to Arbitrate and Class Action Waiver
By accepting these Terms, you are agreeing to the arbitration agreement and class action waiver contained in Section 6 of these Terms below.
1. ABOUT THE SERVICES
Through the Services, we aim to give you access to Santa Cruz Mountains related services, and other content to help you decide what can be of interest to you.
B. Mobile Charges
To the extent you access the Services through a mobile or wireless device, your carrier’s standard charges, data rates and other fees may apply.
Children under the age of 16 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 16 years of age may use the Site and App under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not purchase any products or accessories (“Products”) via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 16 and 18, you are fully responsible for his or her use of the Services, including all legal liability he or she may incur.
D. Modification of the Services or the Terms
SCM MEDIA may modify these Terms or modify, suspend, or discontinue the Services at any time for any reason. However, SCM MEDIA will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site.
2. USE OF THE SERVICES
A. SCM MEDIA Content
Content Provided “As Is.” All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, and photos and comments from other users (“SCM MEDIA Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The SCM MEDIA Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any SCM MEDIA Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the SCM MEDIA Content.
Updates. We may update the SCM MEDIA Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to [email protected] We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.
B. Third Party Content
Links to Third-Party Websites. The Services may contain links or references to non-SCM MEDIA websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and SCM MEDIA is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from SCM MEDIA, and SCM MEDIA has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that SCM MEDIA endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.
C. Acceptable Use Policy
Use of SCM MEDIA Content. No part of the Services, including the SCM MEDIA Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that SCM MEDIA authorizes you to view, copy, download, and print SCM MEDIA Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the SCM MEDIA Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the SCM MEDIA Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the SCM MEDIA Content.
Use of the Services. You may not use the Services to: (i) transmit any content, information or other materials that are, or which SCM MEDIA considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a SCM MEDIA representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent’s consent in case of a child under 16 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations. You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.
Indemnification for Breach. By using the Services, you agree to indemnify, hold harmless and defend SCM MEDIA and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys’ fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.
D. Your Content
If you post, upload or make available to SCM MEDIA or the Services, or otherwise submit to or through SCM MEDIA as part of your use of the Services, including the Site, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to SCM MEDIA a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub- licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, including Section 3(C), and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize SCM MEDIA to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.
There may be delays, omissions, or inaccuracies in the Services, including the SCM MEDIA Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.
3. INTELLECTUAL PROPERTY
A. Ownership of the Services
The Services, including the SCM MEDIA Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of SCM MEDIA and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, the SANTACRUZMOUNTAINS.COM logo is a registered trademark of SCM MEDIA, under the applicable laws of the United States and/or other countries. Other SCM MEDIA product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of SCM MEDIA and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. SCM MEDIA and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms.
Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any SCM MEDIA Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission
of SCM MEDIA or such third party that may own such SCM MEDIA Content.
B. Services License
Subject to your compliance with these Terms, SCM MEDIA grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.
By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that SCM MEDIA may use your Feedback without restriction or obligation to you or any third party.
D. Notice and Take Down Procedures; Copyright Agent
If you believe any SCM MEDIA Content infringes your copyright, you may request removal of those materials (or access thereto) by contacting SCM MEDIA’s copyright agent (identified below) and providing the following information: identification of the copyrighted work that you believe to be infringed, including a description of the work, and where possible a copy or the location (e.g., URL) of an authorized version of the
work; identification of the material that you believe to be infringing and its location, including a description of the material and its URL or any other pertinent information that will allow us to locate the material; your name, address, telephone number and e-mail address; a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; a statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf; and a signature or the electronic equivalent from the copyright holder or authorized representative.
SCM MEDIA’s agent for copyright issues relating to the Services is as follows: [email protected] or by contacting us by telephone (408-520-0448) or by postal mail at Santa Cruz Mountain Media, 6265 Highway 9, Felton, CA 95018. In an effort to protect the rights of copyright owners, SCM MEDIA maintains a policy for the termination, in appropriate circumstances, of subscribers of the Services who are repeat infringers.
A. Termination By SCM MEDIA
Any violation of these Terms, including any of the prohibitions in Section 3(C), may result in suspension or termination of your access to the Services.
B. Effects of Termination
In each of these cases, the Terms will terminate, including your use of the Services, except that the following sections shall continue to apply: 3(A)-(D), 4(A), 5(C), and 6-7, including the mandatory arbitration and class-action waiver provisions.
5. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
A. Limited Warranties
The limited warranties apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by SCM MEDIA in connection with the Services. The limited warranties shall not apply to any matters arising from your violation of these Terms.
B. Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 2(B), THE SERVICES, INCLUDING ALL TRIAL PROGRAMS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, SCM MEDIA DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE SCM MEDIA CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE SERVICES WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
C. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL SCM MEDIA BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES, EVEN IF SCM MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER SECTION 7(A) OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
6. DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER
This Section 6 includes an arbitration agreement and an agreement that all claims will be brought either in arbitration or in small claims court and, in either case, only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
A. Informal Process First
Both you and SCM MEDIA agree that in the event of any dispute between us, you and SCM MEDIA will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
B. Mandatory Arbitration of Disputes
All disputes between you and SCM MEDIA will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement or concerning the performance or obligations of SCM MEDIA or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either SCM MEDIA or you pursuant to the following conditions:
(a) Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will conducted at a JAMS facility in your area or at a JAMS facility in the California Bay Area.
(b) Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.
(c) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’
Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms of Service, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
(d) Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.
(e) Costs and Fees. You will be subject to paying a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration, with SCM MEDIA remaining responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures.
(f) Litigation. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
(g) Other. The Federal Arbitration Act and federal arbitration law apply to these Terms and Conditions.
C. Class Action Waiver
The parties expressly waive any ability to maintain any class action in any forum. Any arbitration, claim or other proceedings by or between you and SCM MEDIA shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
Jurisdictional Issues. SCM MEDIA makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that SCM MEDIA intends to announce or make available
such products or services to the general public, or in your country. Contact SCM MEDIA at [email protected] or by contacting us by telephone (408-520-0448) or by postal mail at Santa Cruz Mountain Media, 6265 Highway 9, Felton, CA 95018.
Export Laws. The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the SCM MEDIA Content, or any part thereof, in any way, in violation of United States law.
Governing Law and Venue. These Terms are governed and interpreted pursuant to the laws of the State of California, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in Northern California, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.
Entire Agreement. These Terms are the entire agreement between you and SCM MEDIA relating to the subject matter herein and shall not be modified except by SCM MEDIA in accordance with these Terms, or as otherwise agreed in writing by you and SCM MEDIA. No employee, agent or other representative of SCM MEDIA has any authority to bind SCM MEDIA with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
Severability and Waiver. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The preceding sentence does not apply to New Jersey residents or transactions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
Assignment. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. SCM MEDIA may assign these Terms at any time without notice to you.
Force Majeure. SCM MEDIA will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond SCM MEDIA’s reasonable control.
Please send any questions or comments, or report violations of these Terms, to [email protected] or by contacting us by telephone (408-520-0448) or by postal mail at Santa Cruz Mountain Media, 6265 Highway 9, Felton, CA 95018.
Updated: January 24, 2018.