2. Additional Terms
Your use of certain Services on the Site may be subject to additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using the Services, you agree to the Additional Terms.
3. Use of the Site and Services
You are responsible for your use of the Site and Services. At Escaya, our goal is to create a positive and safe community experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to Escaya. When you use the Site or Services, you may not:
- violate any law or regulation;
- violate or infringe other people’s intellectual property, privacy, publicity, or other legal rights, particularly by interfering, disrupting, or attempting to gain unauthorized access to other accounts on the Site or any other computer network or to portions of the Site that are restricted;
- transmit anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable; send unsolicited or unauthorized advertising or commercial communications, such as spam;
- disseminate, store, or transmit viruses, trojan horses or any other malicious or unsolicited software;
- stalk, harass, or harm another individual;
- impersonate or misrepresent your affiliation with someone else, create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication;
- use any means to “scrape,” “crawl,” or “spider” any Web pages contained in the Site (although Escaya may allow operators of public search engines to use spiders to index materials from the Site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials, and Escaya reserves the right to revoke these exceptions either generally or in specific cases);
- use automated methods to use the Site or Services in a manner that sends more requests to the Escaya servers in a given period of time than a human can reasonably produce in the same period by using a conventional Web browser; or
- interfere with or disrupt the Site or Services.
4. User Content
You own all content and information you post or share using the Site or Services (referred to as “User Content“), such as posting or sharing recommendations or comments, photos, and profile information. You give Escaya permission to use your User Content as follows: you grant to Escaya and its affiliates a license to use, copy, display and perform your User Content in connection with the Site and Services. We may display advertisements in connection with your User Content or on pages where your User Content may be viewed by you or others and we may use your User Content to advertise and promote Escaya, the Site or the Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. Our license to your User Content is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights anywhere in the world. Finally, our license is perpetual, meaning that our license lasts for an indefinite period of time.
You promise that:
- you own all rights to your User Content or, alternatively, that you have the right to give Escaya the rights described above;
- you have paid and will pay in full any fees or other payments that may be related to the use of your User Content; and
- your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
We may refuse to accept or transmit User Content. We may remove User Content from the Site or Services for any reason.
In addition, when you post a review or any other comment regarding our Services, community or any other product or service, you agree to disclose all material connections you may have in relation to the subject of your comment. A “material connection” is one that could influence the weight or credibility another person would give to the communications or messages made by you.
5. Product reviews
We make no claims or promises about the quality, accuracy, or reliability of any recommendations, reviews, comments or other content available on or through the Site or Services. Escaya is not liable for any loss or damage that might arise from your reliance on any recommendations or other content available on or through the Site or Services.
Other than User Content, we own or license the content on the Site and Services, including, but not limited to, all product brochures, community and home information contained within or linked into the Site, organization, graphics, design, compilation and other matters related to the Site, software, text, visual and audio content (“Content“), Escaya trademarks, trade names, logos, and brand elements (“Escaya Marks”) and the trademarks, trade names, logos and brand elements of third party products and services that may be offered on the Site or through the Services (“Third-Party Marks“). The Content, Escaya Marks and Third-Party Marks are protected under U.S. and international laws. The posting of information or materials on the Site by
Escaya does not constitute a waiver of any rights in such information and materials. We reserve the right in our sole discretion to edit or delete any documents, information, product and service descriptions, terms and other information provided herein are subject to change without notice.
We always welcome and appreciate your feedback and suggestions about Escaya. You understand that we cannot necessarily respond to or implement feedback or suggestions, but if we do, you understand and agree that we may use them without compensation to you.
8. Digital Millennium Copyright Act
Escaya respects the intellectual property rights of others. Upon proper notice, Escaya will remove User Content or other applicable content that violates copyright law and terminate the accounts of repeat infringers. Pursuant to 17 U.S.C. § 512, Escaya has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your work has been copied in a way that constitutes copyright infringement, please send Escaya’s copyright agent (listed below) a notification of claimed infringement with all of the following information:
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- identification of the claimed infringing material and information reasonably sufficient to permit Escaya to locate the material on the Site
- information reasonably sufficient to permit Escaya to contact you, such as an address, telephone number, and, if available, an email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- your physical or electronic signature.
Please send all of the above enumerated information to the following copyright agent:
Please do not send notices or inquiries unrelated to alleged copyright infringement to the designated agent.
11. Changes and Corrections to the Site or Services
Escaya enhances and updates its Site and Services often. We may change or discontinue the Site or any Services, with or without notice to you. Escaya reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice.
We reserve the right not to provide the Site or Services to any user. We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion. If you violate any of these Terms, your permission to use the Site and Services automatically terminates.
13. Disclaimer and Limitations on Our Liability
YOU USE THE SITE AND SERVICES AT YOUR OWN RISK. THE SITE AND SERVICES AND ALL PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ESCAYA AND ITS OFFICERS, EMPLOYEES, MANAGERS, MEMBERS, PARENTS, SUBSIDIARIES, CORPORATE AFFILIATES, AGENTS, AND LICENSORS (REFERRED TO COLLECTIVELY AS “AFFILIATES“) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE AND SERVICES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ARISING OUT OF OR IN THE COURSE OF CONDUCT, TRADE, CUSTOM OR USAGE).
IN PARTICULAR, ESCAYA AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES (INCLUDING, WITHOUT LIMITATION, any REVIEWS, recommendations, COMMENTS or other content available on or through the Site or Services) OR THE CONTENT OF ANY WEB SITES OR RESOURCES LINKED TO THE SITE OR SERVICES. ESCAYA AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (a) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SITE OR SERVICES.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OR IN ANY APPLICABLE ADDITIONAL TERMS, ESCAYA AND ITS AFFILIATES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCT OR SERVICE RECOMMENDED, ADVERTISED OR OFFERED FOR SALE ON OR THROUGH THE ESCAYA SITE OR SERVICES OR ANY LINKED WEB SITE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ESCAYA NOR ITS AFFILIATES WILL BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO USE OF THE SITE OR SERVICES.
To the extent Escaya may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Escaya’s liability will be the minimum permitted under such law.
You agree to indemnify, defend, and hold harmless Escaya and its Affiliates from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including reasonable attorneys’ fees and legal costs), arising from or relating to: (a) any information (including your User Content, feedback, or any other content) that you submit, post, or transmit through the Site or Services; (b) your use of the Site or Services by you; (c) your violation of these Terms; or (d) the violation of any rights of any third party, including intellectual property, privacy, publicity, or other proprietary rights by you. Escaya reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. If we do assume the defense of such a matter, you will reasonably cooperate with Escaya in such defense.
15. Other Provisions
Under no circumstances will Escaya be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond its reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict or choice of laws rules or provisions.
Any controversy, claim, or dispute arising out of or related to these Terms (or the interpretation, performance, or breach of them), the Site or the Services, including but not limited to alleged violations of state or federal statutory or common law rights or duties (a “Dispute”) shall be solely and exclusively resolved according to the procedures set forth in this paragraph. If we are unable to resolve any Dispute through informal means, either party may initiate binding arbitration of such Dispute. The arbitration shall be initiated and conducted according to the JAMS/Endispute Comprehensive Arbitration Rules and Procedures in effect as of the date hereof, including the Optional Appeal Procedure provided for in such rules (the “Arbitration Rules”). The arbitration shall be conducted in San Diego County before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator’s decision shall be controlled by these Terms and any of the other agreements, including any applicable Additional Terms. No Disputes may be arbitrated on a class or representative basis. Arbitration can decide only the individual Dispute and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. BY ENTERING INTO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THESE TERMS MUST BE ASSERTED INDIVIDUALLY. The arbitrator shall not have the power to award punitive damages against any party.
If any provision of these Terms is found to be unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity or enforceability of any remaining provisions.
The failure of Escaya to enforce any right or provision of these Terms will not prevent Escaya from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, a sale of assets or by operation of law.
16. Changes to these Terms
From time to time, we may change these Terms. If we change these Terms, we will inform you by posting the revised Terms on the Site. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use our Site or Services, you agree to the revised Terms. If you object to any such changes, your sole recourse shall be to cease using the Site and/or Services.