TERMS AND CONDITIONS
HIGHBURN STUDIOS TERMS OF USE
Last Updated: 11/15/2021
Introduction
Please read these Terms carefully before using www.highburn.com/ (the “Site”), provided by Highburn Studios (“Highburn”, “Highburn Studios”, “we”, or “us” or “our”). By visiting or otherwise using the Site in any manner, you agree to the then posted Terms and any applicable Additional Terms (defined below), to be bound by them, and that you have read and understood them. You also acknowledge, agree and consent to our data practices as described in our Privacy Policy.
These Terms affect your legal rights, responsibilities and obligations and govern your use of the Site, are legally binding, limit Highburn’s liability to you and require you to indemnify us and to settle certain disputes through individual arbitration. If you do not wish to be bound by these Terms and any Additional Terms, do not use the Site.
Additional Terms
In some instances, additional or different terms, posted on the Site, apply to your use of certain parts of the Site (individually and collectively “Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, these Terms will control unless the Additional Terms expressly state otherwise.
1. OWNERSHIP AND YOUR RIGHTS TO USE THE SITE AND CONTENT.
A. Ownership. The Site and all of its content (“Content”), including all copyrights, patents, trademarks, service marks, trade names and all other intellectual property rights therein (“Intellectual Property”), are owned or controlled by Highburn, our licensors, and certain other third parties. All right, title, and interest in and to the Content and Intellectual Property available via the Site is the property of Highburn, our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other Intellectual Property and unfair competition rights and laws to the fullest extent possible. HIghburn owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Site.
B. Your Rights to Use the Site and Content.
(i) Your right to use the Site and Content is subject to your strict compliance with these Terms and the Additional Terms. Your right to access and use the Site and the Intellectual Property shall automatically terminate upon any violations. These rights are non-exclusive, limited, and revocable by us at any time in our sole discretion without advance notice or liability. As your right to access and use the Site and the content is personal to you, you may not assign nor transfer your right; any attempt to do so is void. You may, for your personal, non-commercial, lawful use only (collectively, the following are the “Highburn Licensed Elements”):
(1) Display, view, use, and play the Content on a computer, mobile or other internet enabled or permitted device (“Device”) and/or print one copy of the Content (excluding source and object code in raw form or otherwise) as it is displayed to you;
(2) Subject to any applicable Additional Terms, if the Site includes a “Send to Friend,” social media sharing or similar tool that allows you to initiate and send to one or more of your contacts a communication that includes content, or to post our content to third-party services or your own site or online service, and the tool is operational, use the tool to do so; provided, however, that you do not do so in any manner that violates applicable law or third-party rights or reflects negativity on us, and only send to recipients you have permission to contact;
(3) If the Site includes a “Download” link next to a piece of content (including, without limitation, an image, an icon, a wallpaper), you may only download a single copy of such content to a single Device;
(4) Link to the Site from a website or other online service, so long as: (a) the links only incorporate text, and do not use any Image names, logos, or images, (b) the links and the content on your website do not suggest any affiliation with Highburn or cause any other confusion, and (c) the links and the content on your website do not portray Highburn or its products or services in a false, misleading, derogatory, or otherwise offensive manner, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party or are otherwise objectionable to Highburn. Highburn reserves the right to suspend or prohibit linking to the Site for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third-party; and
(5) Use any other functionality expressly provided by Highburn on or through the Site for use by users, subject to these Terms and any applicable Additional Terms.
D. Rights of Others. In using the Site, you must respect the Intellectual Property and rights of others and Highburn. Your unauthorized use of Content may violate the rights of others and applicable laws, and may result in your civil and criminal liability. If you believe that your work has been infringed via the Site, see Section 5 below.
E. Reservation of all Rights Not Granted as to Content and Site. These Terms and any applicable Additional Terms include only narrow, limited grants of rights to use and access the Site and content. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. HiGHBURN AND ITS LICENSORS AND OTHER THIRD PARTIES Reserve ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU. Any unauthorized use of any Content or the Site for any purpose is prohibited.
F. Third-Party Services. We are not responsible for third parties or their content, advertisement(s), apps or sites (“Third-Party Services”). For instance, portions of the Site may be integrated into or linked to third-party sites, platforms and apps that we do not control. Similarly, we may make ads and third-party content or services, which we also may not control, available to you on or via our Site. This may include the ability to register or sign in to our Sites using Facebook Connect or other third-party tools, and to post content on third-party sites and services using their plug-ins made available on our Sites. Use caution when dealing with third parties and consult their terms of use and privacy policies. We take no responsibility for Third-party Services.
2. SUBMISSIONS
(i) Your Submissions Generally. Highburn does not allow you to submit original ideas to us as per our Submissions program. The original ideas you submit to us may include messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but not excluding Highburn Licensed Elements included therein, “Submissions”). You may submit Submissions via email or otherwise, as per the Submissions page instructions. Except to the extent of the rights and license you grant in these Terms and, subject to any applicable Additional Terms, you retain whatever legally cognizable right, title, and interest you have in your Submissions.
(ii) Non-Confidentiality of Your Submissions. Except as otherwise described any applicable Additional Terms, you agree that (a) your Submissions will be treated as non-confidential and non-proprietary by us – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) to the maximum extent not prohibited by applicable law, Highburn does not assume any obligation of any kind to you or any third-party with respect to your Submissions. Upon request, you will provide documentation necessary to authenticate rights to such content and verify your compliance with these Terms or any applicable Additional Terms. You acknowledge that the Internet may be insecure and subject to breaches of security; according, you acknowledge and agree that your Submissions are submitted at your own risk.
In your communications with Highburn, please keep in mind that beyond Submissions we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you submit are licensed to us as set forth below. In addition, Highburn retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Highburn's receipt of your Unsolicited Ideas and Materials is not an admission by Highburn of their novelty, priority, or originality, and it does not impair Highburn's right to contest existing or future Intellectual Property rights relating to your Unsolicited Ideas and Materials.
(iii) License to Highburn of Your Submissions and Unsolicited Ideas and Materials. Except as otherwise described in any applicable Additional Terms (such as a promotion’s official rules), you hereby grant Highburn, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Submissions and Unsolicited Ideas and Materials (and derivative works thereof), 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. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such Submissions and Unsolicited Ideas and Materials and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any Submissions and Unsolicited Ideas and Materials for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to Highburn to your Submissions and Unsolicited Ideas and Materials, you also, as permitted by applicable law, hereby grant to Highburn, and agree to grant to Highburn, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any Submissions and Unsolicited Ideas and Materials, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Submissions and Unsolicited Ideas and Materials, even if it is altered or changed in a manner not agreeable to you. To the extent unswaivable, you irrevocably agree not to exercise such rights (if any) 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 in this Section.
(iv) Highburn’s Exclusive Right to Manage Our Site. Highburn may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your Submissions, and Highburn may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of Submissions without notice or any liability to you or any third-party in connection with our operation of Submissions venues in an appropriate manner, such as to enhance accessibility of Submissions, address copyright infringement and protect users from harmful Submissions. Without limitation, we may, but do not commit to, do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. Such Submissions submitted by you or we need not maintain others on the Site for any period of time, and you will not have the right, once submitted, to access, archive, maintain, change, remove, or otherwise use such Submissions on the Site or elsewhere.
(v) Representations and Warranties Related to Your Submissions. Each time you submit any Submission, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any Submission you submit, and that, as to that Submission, (a) you are the sole author and owner of the Intellectual Property and other rights to the Submission, or you have a lawful right to submit the Submission and grant Highburn the rights to it that you are granting by these Terms and any applicable Additional Terms, all without any Highburn obligation to obtain consent of any third-party and without creating any obligation or liability of Highburn; (b) the Submission is accurate; (c) the Submission does not and, as to Highburn’s permitted uses and exploitation set forth in these Terms, will not infringe any Intellectual Property or other right of any third-party; and (d) the Submission will not violate these Terms or any applicable Additional Terms, or cause injury or harm to any person.
(vi) Enforcement. Highburn has no obligation to monitor or enforce your Intellectual Property rights to your Submissions, but you grant us the right to protect and enforce our rights to your Submissions, including initiating actions in your name and on your behalf (at Highburn’s cost and expense, to which you hereby consent and irrevocably appoint Highburn Studios as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
(vii) Appropriate Content and Alerting Us of Violations. We expect Submissions to be appropriate for a general audience, but do not undertake to monitor it, and you consent to potentially encountering content you find offensive or inappropriate. Additional Terms may govern content and venue of Submissions. If you discover any content that violates these Terms or any applicable Additional Terms, then you may report it via email to info@highburn.com. For alleged infringements of Intellectual Property rights, see Section 5.
3. SERVICE AND CONTENT USE RESTRICTIONS.
A. Service Use Restrictions. You agree that you will not: (i) use the Site for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Intellectual Property; (iii) engage in any activities through or in connection with the Site that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third-party, or are otherwise objectionable to Highburn; (iv) decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Site by any means whatsoever or modify any Site source or object code or any software or other products, services, or processes accessible through any portion of the Site; (v) engage in any activity that interferes with a user’s access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, Highburn Studios, or other users of the Site; (vi) interfere with or circumvent any security feature (including any digital rights management mechanism, device or other content protection or access control measure) of the Site or any feature that restricts or enforces limitations on use of or access to the Site or Content; (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Site, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Site, other computer systems or networks connected to the Site, through password mining or any other means; or (ix) otherwise violate these Terms or any applicable Additional Terms.
B. Content Use Restrictions. You also agree that, in using the Site, you: (i) will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Site by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) will not frame or utilize framing techniques to enclose any such content (including any images, text, or page layout); (iii) will keep intact all trademark, copyright, and other Intellectual Property and other notices contained in such content; (iv) will not use such content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) will not make any modifications to such content (other than to the extent of your specifically permitted use of the Highburn Licensed Elements, if applicable); (vi) will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third-party or on any third-party application or website, or otherwise use or exploit such content in any way for any purpose except as specifically permitted by these Terms or any applicable Additional Terms or with the prior written consent of an officer of Highburn or, in the case of content from a licensor, the owner of the content; and (vii) will not insert any code or product to manipulate such content in any way that adversely affects any user experience or the Site.
C. Availability of Site and Content. Highburn, in its sole discretion without advance notice or liability, may immediately suspend or terminate the availability of the Site and/or Content (and any elements and features of them), in whole or in part, for any reason, in Highburn’s sole discretion, and without advance notice or liability.
5. PROCEDURE FOR ALLEGING COPYRIGHT INFRINGEMENT.
If you are a copyright owner who would like to send us a notice pursuant to the Digital Millennium Copyright Act (“DMCA”) to identify content or material posted on the Site that is infringing that you would like removed from our Site, or if you are a user whose work has been removed in response to such a notice of infringement and would like to file a DMCA counter-notice, you may submit such notice to us by emailing us here.
A. Highburn asks our users to respect the intellectual property rights of others. It is our policy to respond appropriately to clear notices of alleged copyright infringement, as set forth more fully below. In Highburn’s sole discretion, Highburn Studios may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer. In accordance with the U.S. Digital Millennium Copyright Act (“DMCA”) and other applicable law, Highburn has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers.
B. If we remove or disable access in response to a DMCA Copyright Infringement Notice, we will make a good faith attempt to contact the owner or administrator of the affected content so that they may make a counter-notification. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the full URL of the page(s) on the Site on which the material appears and screenshots, if available);
(iv) your full name, address, telephone number, and email address;
(v) a statement by you that you have 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;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
Highburn will only respond to DMCA Notices that it receives by mail or email at the addresses below:
By Mail: Highburn Studios 201 Rocky Slope Road Set 1004 Greenville, SC 29607
By Email: info@highburn.com
It is often difficult to determine if your copyright has been infringed. Highburn Studios may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Highburn Studios may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting Highburn’s other rights, Highburn may, in appropriate circumstances, terminate a repeat infringer’s access to the Site and any other website owned or operated by Highburn Studios.
C. Counter-Notification. If access on the Site to a work that you submitted to Highburn is disabled or the work is removed as a result of a DMCA Copyright Infringement Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA Counter-Notification”;
(ii) a description 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 (please include the full URL of the page(s) on the Site from which the material was removed or access to it disabled);
(iii) a statement 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 of the material to be removed or disabled;
(iv) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the State of Oregon), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(v) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Site. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
6. NOTICES, QUESTIONS AND CUSTOMER SERVICE.
You agree that we may give you notices or otherwise respond to you by mail or to your email (if we have it on file) or in any other manner reasonably elected by us. All legal notices to us must be sent to: [address]. If you have a question regarding the Site, you may contact Highburn's Customer Support by sending an email to info@highburn.com. You acknowledge that we have no obligation to provide you with customer support of any kind and that customer service personnel cannot change or waive Terms or applicable Additional Terms.
7. ARBITRATION AND DISPUTE TERMS.
A. Forum Selection/Jurisdiction. Jurisdiction and venue for any controversy, allegation, or claim arising out of or relating to the Site, the Content, your Submissions, these Terms, or any applicable Additional Terms, (collectively, “Dispute”) shall be in Henry County, Virginia. Each party submits to personal jurisdiction and venue in Henry County, Virginia for any and all purposes.
B. Pre-Arbitration Notification. Highburn and you agree that it would be advantageous to discuss and hopefully resolve any Disputes before formal proceedings are initiated; provided, however, that Highburn need not do so in circumstances where its claims of Intellectual Property rights are concerned (“IP Disputes,” with all other disputes referred to as “General Disputes”). The party making a claim – whether you or Highburn – shall send a letter to the other side briefly summarizing the claim and the request for relief. If Highburn is making a claim, the letter shall be sent, via email, if applicable. If no such information exists or if such information is not current, then we have no notification or delay obligations under this Section 8.B. If you are making a claim, the letter shall be sent to (Attn: General Counsel) Highburn Studios, 201 Rocky Slope Road Set 1004, Greenville, SC 29607 2. If the Dispute is not resolved within sixty (60) days after notification, the claimant may proceed to initiate proceedings as set forth in this Section 8. Either you or Highburn, however, may seek provisional remedies (such as preliminary injunctive relief, subject to Section 8.D) before the expiration of this sixty (60)-day period.
C. Arbitration of Claims. All actions or proceedings arising in connection with, touching upon or relating to any Dispute, or the scope of the provisions of this Section, shall be submitted to Highburn Studios for final and binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less, to be held in Henry County before a single arbitrator in accordance with Virginia Code of Civil Procedure. If the matter in dispute is between Highburn and a consumer, the matter shall be submitted to us in accordance with its Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by us. We may have the right to pay the fees if required for arbitration to be enforceable. The arbitration shall be a confidential proceeding, closed to the general public; provided, however, that a party may disclose information relating to the arbitration proceedings to its and its affiliates’ lawyers, insurance providers, auditors and other professional advisers. The fact that there is a dispute between the parties that is the subject of arbitration shall be confidential to the same extent. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrator’s award; provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief (subject to the provisions of these Terms waiving or limiting that relief) in a court of competent jurisdiction in Greenville City, SC or, if sought by Highburn, such other court that may have jurisdiction over you, without thereby waiving its right to arbitration of the dispute or controversy under this Section; provided further, however, that the losing party shall have fifteen (15) business days after the issuance of the arbitrator’s decision to fully comply with such decision, after which the prevailing party may enforce such decision by a petition to the Greenville City Superior Court or, in the case of you, such other court having jurisdiction over you, which may be made ex parte, for confirmation and enforcement of the award.
D. Limitation on Injunctive Relief. AS PERMITTED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS (WITHOUT LIMITATION) THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SITE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED, OR CONTROLLED BY ANY HIGHBURN PARTY (DEFINED BELOW) (INCLUDING YOUR LICENSED SUBMISSIONS) OR A LICENSOR OF ANY HIGHBURN PARTY.
E. Governing Law. These Terms and any applicable Additional Terms, General Disputes and IP Disputes, and any other claim brought by you against Highburn or by Highburn against you pursuant to this Section 8, or otherwise related to the Site, Content, Highburn Licensed Elements, Submissions or other Highburn products or services, will be governed by, construed, and resolved in accordance with, the laws of the State of South Carolina, U.S.A., without regard to its conflicts of law provisions that might apply the laws of another jurisdiction. This Section 8 shall be governed solely by the Federal Arbitration Act, 9 U.S.C. §1, et seq., and not by the law of any state, and is enforceable pursuant to its terms on a self-executing basis. You and Highburn agree that we intend that this Section 8 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 8 can only be amended by mutual agreement. Either party may seek enforcement of this Section 8 in any court of competent jurisdiction. The arbitrator shall determine any and all challenges to the arbitrability of a claim.
F. Class Action Waiver. As permitted by applicable law, both you and Highburn waive the right to bring any Dispute as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any Dispute brought by anyone else. Notwithstanding any provision in the Comprehensive Arbitration Rules and Procedures to the contrary, the arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or otherwise combine the Disputes of different persons into one proceeding. Notwithstanding the arbitration provision set forth above, if the provision regarding waiver of class, collective, representative, and private attorney general claims of this Section 8 is found to be void or otherwise unenforceable, any such class, collective, representative, or private attorney general claims must be heard and determined through an appropriate court proceeding, and not in arbitration.
G. Jury Waiver. AS PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THESE TERMS, THE BREACH THEREOF AND/OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF.
H. Small Claims Matters. Notwithstanding the foregoing, either of us may bring qualifying claim of General Dispute (but not IP Disputes) in small claims court, subject to Section 8.F.
I. The provisions of this Section 8 shall supersede any inconsistent provisions of any prior agreement between the parties. This Section 8 shall remain in full force and effect notwithstanding any termination of your use of the Site or these Terms.
9. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
A. AS PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK AND THE SITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. To the fullest extent permissible by applicable law, Highburn and their direct and indirect parents, subsidiaries, affiliates, and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, “Highburn Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, in connection with, or otherwise directly or indirectly related to, without limitation, the Site, Content, Highburn Licensed Elements, Submissions or other Highburn products or services.
B. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN, OR IN APPLICABLE ADDITIONAL TERMS, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, HIGHBURN PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
C. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT HIGHBURN PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY HIGHBURN PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (III) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST HIGHBURN PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.
10. LIMITATIONS OF OUR LIABILITY.
A. AS PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY HIGHBURN PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages of any kind, including without limitation loss of profits, in connection with, or otherwise directly or indirectly related to, without limitation, the Site, Content, Highburn Licensed Elements, Submissions or other Highburn products or services.
B. The foregoing limitations of liability will apply even if any of the events or circumstances were foreseeable and even if Highburn Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Site).
11. UPDATES TO TERMS.
It is your responsibility to review the posted Terms and any applicable Additional Terms each time you use the Site (at least prior to each transaction or submission). EACH TIME YOU USE THE SITE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF NEW TERMS BY POSTING THEM ON THE SITE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SITE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE NEW TERMS FOR YOUR NEW USE AND TRANSACTIONS. Any new Terms or Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. In the event any notice to you of new, revised, or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You can reject any new, revised or additional terms by discontinuing use of the Site.
12. GENERAL PROVISIONS.
A. Highburn Studios Consent or Approval. As to any provision in these Terms or any applicable Additional Terms that grants Highburn a right of consent or approval, or permits Highburn to exercise a right in its “sole discretion,” Highburn may exercise that right in its sole and absolute discretion. No Highburn consent or approval may be deemed to have been granted by Highburn without being in writing and signed by an officer of Highburn.
B. Indemnity. As permitted by applicable law, you agree to, and you hereby, defend (if requested by Highburn), indemnify, and hold Highburn Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Highburn Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) your Submissions; (ii) your use of the Site and your activities in connection with the Site; (iii) your breach or alleged breach of these Terms or any applicable Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Site or your activities in connection with the Site; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) Highburn Parties’ use of the information that you submit to us (including your Submissions) subject to our Privacy Policy (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Highburn Parties, in the defense of any Claim and Losses. Notwithstanding the foregoing, Highburn Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. Highburn Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a Highburn Party. This section is not intended to limit any causes of action against us that you may have but are not waivable under applicable law.
C. International Issues. Highburn controls and operates the Site from the U.S.A., and makes no representation that the Site is appropriate or available for use beyond the U.S.A. If you use the Site from other locations, you are doing so on your own initiative and responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.
D. Severability; Interpretation. If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the applicable Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. To the extent permitted by applicable law, you agree to waive and will waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
E. Investigations; Cooperation with Law Enforcement; Termination; Survival. As permitted by applicable law, Highburn reserves the right, without limitation, to: (i) investigate any suspected breaches of its Site security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any applicable Additional Terms, (iii) use any information obtained by Highburn in accordance with its Privacy Policy in connection with reviewing law enforcement databases or complying with applicable laws and use and/or disclose any information obtained by Highburn to comply with law enforcement requests or legal requirements in accordance our Privacy Policy, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any applicable Additional Terms, and (vi) discontinue the Site, in whole or in part, or, suspend or terminate your access to it, in whole or in part, at any time, without notice, for any reason and without any obligation to you or any third-party. Any suspension or termination will not affect your obligations to Highburn under these Terms or any applicable Additional Terms. Upon suspension or termination of your access to the Site, or upon notice from Highburn, 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 Site. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Highburn in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
F. Assignment. Highburn may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Highburn
G. Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Site and supersede any prior agreements, representations, warranties, assurances or discussion related to the Site. Nothing in the preceding sentence shall limit or exclude any liability for fraud or fraudulent misrepresentation. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or HIGHBURN STUDIOS in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
H. South Carolina Consumer Rights and Notices. South Carolina residents can obtain information on our privacy practices.