DATE: Friday, April 7, 2022
BY ACCESSING OR USING ANY PART OF THE SITES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THESE TERMS NOW OR IN THE FUTURE, THEN DO NOT ACCESS OR USE THE SITES. YOUR CONTINUED USE OF THE SITES NOW OR FOLLOWING THE POSTING OF ANY CHANGES IN THESE TERMS, WILL INDICATE ACCEPTANCE AND AGREEMENT BY YOU OF SUCH CHANGES.
In some instances, both these Terms and separate terms elsewhere on the Sites will apply to your use of the Sites (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
We control and operate the Sites from the United States, and we make no representation that the Sites are appropriate or available for use beyond the United States. Software related to or made available by the Sites may be subject to United States export controls, and except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to United States export controls or sanctions.
UNLESS YOU OPT OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE DISPUTE RESOLUTION SECTION BELOW, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SUCH SECTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
The Sites contain: (i) materials and other items relating to Agency and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs,
sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Sites, and the compilation, assembly, and arrangement of the materials of the Sites and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Agency; and (iii) other forms of intellectual property (collectively, “Content”). All right, title, and interest in and to the Sites and the Content are the property of Agency or our licensors or certain other third parties, and is protected by United States and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
We reserve the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse, or remove any or all Content. You understand that by using the Sites you may be exposed to Content that you may find offensive, indecent, or objectionable and that, in this respect, you use the Sites at your own risk.
Subject to your strict compliance with these Terms and any applicable Additional Terms, we grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to access, enter, attend, download, display, view, use, consume, and/or otherwise exploit the Sites and the Content in each case for your personal, non-commercial use only. This limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated for any reason, in our sole discretion, and without advance notice or liability. To protect all parties’ intellectual property rights, any unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. It is your responsibility to ensure your equipment (computer, laptop, netbook, tablet or other mobile device) meets all the necessary technical specifications to enable you to access and use the Sites, if any. You acknowledge and agree that your use of the Sites is at your sole risk and responsibility. We expressly reserve the right to remove and/or delete any data, files, and/or other information stored or used in connection with the Sites for any reason.
We reserve the right to refuse access to the Sites and/or Content to anyone for any reason at any time. We may suspend or terminate the availability of the Sites and Content, in whole or in part, to you for any reason, in our sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Sites, or upon notice from us, all rights granted to you under these Terms, or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Sites and Content.
Reservation of Rights
All rights not expressly granted to you are reserved by Agency and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Sites for any purpose is prohibited.
If you send certain specific submissions or creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Submissions”), you grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to host, store, use, display, reproduce, modify, adapt, edit, combine with other materials, publish, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including, without limitation, to third party media channels, platforms, and distributors), publicly perform, publicly display, and otherwise use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Submissions, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You further irrevocably grant us the right, but not the obligation, to use your name, image, likeness, picture, avatar, social media handle, biographical information, or other indicia, in connection with your Submissions. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.
You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted herein. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Submissions. You waive any and all rights and claims in connection with our consideration, use, or development of any product, content, or other materials similar or identical to your Submission now or in the future.
You agree that your Submissions will not violate any right of any third-party, including copyright, trademark, privacy, personality, or other personal or proprietary right. You further agree that your Submissions will not contain libelous or otherwise unlawful, abusive, or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Sites or any related websites. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any Submissions. You are solely responsible for any Submissions you make and their accuracy. We take no responsibility and assume no liability for any Submissions provided by you or any third-party.
We may provide you with access to third-party tools, content, products or services over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such third-party content “as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of such third-party content.
Any use by you of third-party content offered through the Sites is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
Third-party links on the Sites may direct you to third-party websites that are not affiliated with Agency. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties available through or at such third-party links.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party.
We take copyright infringement claims seriously and respond to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). To submit a notice of claimed copyright infringement under United States law, provide our designated agent with the following written information:
Our designated agent is:
Arc USA Chicago, a division of Leo Burnett Company, Inc.
35 West Wacker Drive
Chicago, Illinois 60601
You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.
We will respond to notifications of claimed copyright infringement in accordance with the DMCA.
If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information:
We will respond to counter notifications in accordance with the DMCA.
Contact us here for questions about your use of the Sites or these Terms: CustomerService@arcww.com. When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Occasionally there may be information on the Sites that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel orders if any information on the Sites or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend, or clarify information on the Sites or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Sites or on any related website, should be taken to indicate that all information on the Sites or on any related website has been modified or updated.
THE SITES AND ANY CONTENT THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SITES AND THE CONTENT MAY CONTAIN AUDIO-VISUAL EFFECTS, STROBE LIGHTS OR OTHER MATERIALS THAT MAY AFFECT YOUR PHYSICAL SENSES AND/OR PHYSICAL CONDITION. WE ARE NOT RESPONSIBLE WHETHER THE SITES, INCLUDING ANY CONTENT THEREIN, ARE ACCURATE, COMPLETE, OR CURRENT. CONTENT IS PROVIDED FOR GENERAL INFORMATION ONLY AND SHOULD NOT BE RELIED UPON OR USED AS THE SOLE BASIS FOR MAKING DECISIONS. ANY RELIANCE ON THE SITES, AND ANY CONTENT THEREIN, IS AT YOUR OWN RISK.
THE SITES AND CONTENT THEREIN MAY CONTAIN CERTAIN HISTORICAL INFORMATION. HISTORICAL INFORMATION, NECESSARILY, IS NOT CURRENT AND IS PROVIDED FOR YOUR REFERENCE ONLY. WE RESERVE THE RIGHT TO MODIFY THE SITES AND ANY CONTENT AT ANY TIME, BUT WE HAVE NO OBLIGATION TO UPDATE THE SITES OR THE CONTENT. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO MONITOR CHANGES TO THE SITES THAT MAY AFFECT YOU.
WE DO NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES WILL BE ACCURATE OR RELIABLE.
YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SITES AND/OR ANY CONTENT THEREIN FOR INDEFINITE PERIODS OF TIME OR CANCEL THE SITES AT ANY TIME, WITHOUT NOTICE TO YOU.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL AGENCY BE LIABLE TO YOU FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SITES, (B) THESE TERMS OR (C) YOUR MISUSE OF THE SITES OR ANY CONTENT AVAILABLE ON OR THROUGH THE SITES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED RESULTING FROM AGENCY’S INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
You agree to indemnify, defend, and hold harmless Agency , our parent, affiliate, and subsidiary entities, and each of our and their respective partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your (i) your breach or alleged breach of these Terms; (ii) your Submissions; (iii) your misuse of the Sites and/or the Content; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property, or privacy right; (vi) your use of a third-party product, service, and/or website; or (vii) any misrepresentation made by you. We reserve the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with our defense of any claim. You will not in any event settle any claim without our prior written consent.
These Terms are effective unless and until terminated by either you or us. You may terminate these Terms at any time by notifying us that you no longer wish to use the Sites, or when you cease using the Sites.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms, we also may terminate these Terms at any time without notice; and/or accordingly may deny you access to the Sites.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Sites (or any parts thereof).
These Terms and any separate agreements whereby we provide you services shall be governed by and construed in accordance with the laws of the state of Illinois without reference to its conflicts of laws principles.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Agreement to Arbitrate
You and Agency agree that any dispute, claim, or controversy arising out of or relating to these Terms, or the use of the Sites (“Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court (a “Small Claims Action”) and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights (an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in Cook County, Illinois and Agency and you waive any objection to jurisdiction and venue in such courts and consent to their jurisdiction. You agree you may bring arbitration claims only on your own behalf and not on behalf of any other person or entity.
Unless you timely provide us with an Arbitration Opt-out Notice (as defined below in the subsection titled “Your Choices”), you acknowledge and agree that you and Agency are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Agency otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding.
This clause does not limit either party’s ability to file an action in a court with jurisdiction to seek injunctive or other equitable relief for disputes relating to intellectual property, proprietary data, or to enforce this dispute resolution clause, including your agreement not to assert claims related to the suspension or termination of another person’s account. In any such action, the court rather than an arbitrator must decide whether such a claim is arbitrable and must decide whether the party is entitled to the requested injunctive or other equitable relief.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Dispute Resolution Section. (The AAA Rules are available at https://www.adr.org/mediation or by calling the AAA at 1–800–778–7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Dispute Resolution Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules (The AAA provides a form Demand for Arbitration). The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Agency otherwise agree, the arbitration will be conducted in the state where you reside, with the option for you to participate telephonically to the extent the AAA Rules allow. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Agency submit to the arbitrator, unless you request a hearing, or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions which the arbitrator based its award on. Judgment on the arbitration award may be entered in any court having jurisdiction over the arbitration award. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” subsection of these Terms as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Agency will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration, unless such arbitration is found by the arbitrator to be frivolous under the standards of the Federal Rules of Civil Procedure 11(b) and in that case, Agency shall be entitled to recover attorneys’ fees in addition to any damages awarded to it.
If the arbitrator finds that your payment of the administrative and arbitrator fees (excluding any attorney’s fees) under this subsection is a burden on you, we agree to pay those fees for you (but not any attorney’s fees).
By rejecting any changes to these Terms, you agree that you will arbitrate any Dispute between you and Agency in accordance with the provisions of this Section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
If you do not want to settle Disputes by arbitration as described above, you will notify us by sending us written notice (including by email to CustomerService@arcww.com telling us that you do not want to use arbitration, within thirty (30) days of the date on which you agreed to these Terms (such notice, an “Arbitration Opt-out Notice”). If you do not provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any dispute except for a Small Claims Action and an IP Protection Action as stated above.
We reserve the right to investigate and prosecute any suspected breaches of these Terms or the Sites. We may disclose any information as necessary to satisfy any law, regulation, legal process, or governmental request.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY AGENCY OR A LICENSOR OF AGENCY .
You can review the most current version of the Terms on the Sites.
We reserve the right to update, change, or replace any part of these Terms by posting updates and/or changes to our website (which constitutes notice to you). It is your responsibility to check the Sites periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
We may provide patches, updates, or upgrades to the Sites that must be installed for you to continue to use the Sites. Although we will use commercially reasonable efforts to notify you, we may update the Sites remotely without notifying you, and you hereby consent to us applying patches, updates, and upgrades. You acknowledge that your use of the Sites does not confer on you any interest, monetary or otherwise, in any aspect or feature of the Sites, including but not limited to (where applicable) any rewards, or Content (save for where it is your own Submissions). You also acknowledge that any data, customization, or other data related to your use of the Sites may cease to be available to you at any time without notice from us, including without limitation after a patch, update, or upgrade is applied by us. We do not have any maintenance or support obligations with respect to the Sites.
In the event that any provision of these Terms is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
These Terms and any policies or operating rules posted by us on the Sites or in respect to the Sites constitutes the entire agreement and understanding between you and us and govern your use of the Sites, superseding any prior or contemporaneous agreements, communications, and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of these Terms).
Any failure by us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
You shall not, without our prior written consent, assign, transfer, charge, or sub-contract all or any of your rights or obligations under these Terms, and any attempt without that consent will be null and void. If such restrictions on transfer under these Terms are not enforceable under the law of your country, then these Terms will be binding on any such recipient. We may at any time assign, transfer, charge, or sub-contract all or any of its rights or obligations under these Terms.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.