Last Updated Date: September 19, 2016
PLEASE BE AWARE THAT SECTION 19 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF COLORADO, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY TARA MANDALA IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Tara Mandala will make a new copy of the Terms available at the Website and within the Application. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2.1 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new Users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2.1 below). Tara Mandala may require you to provide consent to the updated Terms in a specified manner before further use of the Website, Application, and/or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, Application, and/or the Services. Otherwise, your continued use of the Website, Application, and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Use of the Services and Tara Mandala Properties
The Website, the Application, the Services, and the information and content available on the foregoing (collectively, the “Tara Mandala Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Tara Mandala grants you a limited license to reproduce portions of the Tara Mandala Properties for the sole purpose of using the Services for your personal purposes.
1.1. Application License. Subject to your compliance with the Terms, Tara Mandala grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
1.2. Updates. You understand that Tara Mandala Properties are evolving. As a result, Tara Mandala may require you to accept updates to Tara Mandala Properties that you have installed on your mobile device. You acknowledge and agree that Tara Mandala may update Tara Mandala Properties with or without notifying you. You may need to update third-party software from time to time in order to use Tara Mandala Properties.
1.3. Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Tara Mandala Properties or any portion of Tara Mandala Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Tara Mandala Properties (including images, text, page layout or form) of Tara Mandala; (c) you shall not use any metatags or other “hidden text” using Tara Mandala’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Tara Mandala Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Tara Mandala Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Tara Mandala Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Tara Mandala Properties. Any future release, update or other addition to Tara Mandala Properties shall be subject to the Terms. Tara Mandala, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Tara Mandala Properties terminates the licenses granted by Tara Mandala pursuant to the Terms.
1.4. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Tara Mandala Properties, including but not limited to, a mobile device that is suitable to connect with and use Tara Mandala Properties when using an Application. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Tara Mandala Properties.
2.1. Registering Your Account. In order to access certain features of Tara Mandala Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account (“Account”).
2.2. Registration Data. In registering an Account, you agree to provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”) and maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are of legal age to form a binding contract and not a person barred from using Tara Mandala Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Tara Mandala Properties by minors. You may not share your Account or password with anyone, and you agree to notify Tara Mandala immediately of any unauthorized use of your password or any other breach of security and exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Tara Mandala has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Tara Mandala has the right to suspend or terminate your Account and refuse any and all current or future use of Tara Mandala Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Tara Mandala reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Tara Mandala Properties if you have been previously removed by Tara Mandala, or if you have been previously banned from any of Tara Mandala Properties.
2.3. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Tara Mandala.
3. Responsibility for Content
3.1. Types of Content. You acknowledge that all information, data, pictures, or other content (“Content”) on Tara Mandala Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Tara Mandala, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Tara Mandala Properties (“Your Content”), and that you and other Users of Tara Mandala Properties, and not Tara Mandala, are similarly responsible for all Content they Make Available through Tara Mandala Properties (“User Content”).
3.2. No Obligation to Pre-Screen Content. You acknowledge that Tara Mandala has no obligation to pre-screen Content (including, but not limited to, User Content), although Tara Mandala reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content. In the event that Tara Mandala pre-screens, refuses or removes any Content, you acknowledge that Tara Mandala will do so for Tara Mandala’s benefit, not yours. Without limiting the foregoing, Tara Mandala shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
4.1. Tara Mandala Properties. Except with respect to Your Content and User Content, you agree that Tara Mandala and its suppliers own all rights, title and interest in Tara Mandala Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Tara Mandala Properties.
4.2. Trademarks. Tara Mandala, Feeding Your Demons, Machig Publications, Tara Mandala’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with Tara Mandala Properties or in connection with the Services are the trademarks of Tara Mandala and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Tara Mandala Properties are the property of their respective owners.
4.3. Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Tara Mandala Properties.
4.4. Your Content. Tara Mandala does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Tara Mandala Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5. License to Your Content. Subject to any applicable account settings that you select, you hereby grant Tara Mandala a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Tara Mandala Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Tara Mandala Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Tara Mandala, are responsible for all of Your Content that you Make Available on or in Tara Mandala Properties.
4.6. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on Tara Mandala Properties, you hereby expressly permit Tara Mandala to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.7. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Tara Mandala through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Tara Mandala has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Tara Mandala a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
5. User Conduct
As a condition of use, you agree not to use Tara Mandala Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any Content on or through Tara Mandala Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Tara Mandala’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Tara Mandala; (vi) interferes with or attempts to interfere with the proper functioning of Tara Mandala Properties or uses Tara Mandala Properties in any way not expressly permitted by the Terms; or (vii) to attempt or engage in, any potentially harmful acts that are directed against Tara Mandala Properties, including but not limited to violating or attempting to violate any security features of Tara Mandala Properties, introducing viruses, worms, or similar harmful code into Tara Mandala Properties, or interfering or attempting to interfere with use of Tara Mandala Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” Tara Mandala Properties.
Tara Mandala may, but is not obligated to, monitor or review Tara Mandala Properties and Content at any time. Without limiting the foregoing, Tara Mandala shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Tara Mandala does not generally monitor user activity occurring in connection with Tara Mandala Properties or Content, if Tara Mandala becomes aware of any possible violations by you of any provision of the Terms, Tara Mandala reserves the right to investigate such violations, and Tara Mandala may, at its sole discretion, immediately terminate your license to use Tara Mandala Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. Interactions with Other Users
7.1. User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Tara Mandala reserves the right, but has no obligation, to intercede in such disputes. You agree that Tara Mandala will not be responsible for any liability incurred as the result of such interactions.
7.2. Content Provided by Other Users. Tara Mandala Properties may contain User Content provided by other Users. Tara Mandala is not responsible for and does not control User Content. Tara Mandala has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
8. Online Courses
8.1. Transmissions. If you purchase an online course which contains a requirement for a transmission in its description, you represent and warrant that either (i) you have already received the specific transmission from Lama Tsultrim or another teacher qualified to provide the requisite transmission or (ii) prior to commencing the online course, you will either complete a “live transmission” webcast or receive the transmission in person, including the rLung for the applicable online course.
8.2. Online Course Cancellation. Tara Mandala reserves the right to change and/or discontinue online courses at any time. If an online course you have purchased will be changed or discontinued, Tara Mandala will contact you so that you are aware of the situation.
9.1. Order Process. After Tara Mandala receives your order, you will receive an email from Tara Mandala confirming receipt of your order (usually in minutes). If you do not receive an email from Tara Mandala confirming receipt of an order that you placed, please contact Tara Mandala at email@example.com before you attempt to place another order.
9.2. Order Issues
(a) If there is an error in pricing and/or other information about your order (“Description Error”), then Tara Mandala will notify you at the email address that you have provided. Once the error has been corrected, Tara Mandala will ask you whether or not you would like to re-submit your order to purchase.
(b) Although it is unlikely that Tara Mandala would refuse to accept an order, Tara Mandala reserves the right to deny any order for any reason, including where the following situations arise: (i) insufficient information or errors in billing, payment, and/or shipping information; (ii) orders that cannot be processed due to erroneous information that you have provided, which includes, but is not limited to incorrect credit card or debit card number, expiration date, security value, or other incorrect information regarding payment types; (iii) suspected fraudulent information; or (iv) unavailability of your order due to discontinuance or otherwise.
(c) Tara Mandala may refuse to accept any order if fraudulent activity is suspected. Tara Mandala may refuse to process any subsequent order from a customer who has a history of placing fraudulent orders.
(d) Tara Mandala may refuse any order that is connected with a previous credit card dispute.
9.3. Restrictions on Resale. In order to protect the intellectual property rights of Tara Mandala and its licensors and suppliers, any suspected resale of any goods or services ordered for personal and/or business profit is strictly prohibited. Tara Mandala will not accept any order that is deemed to possess characteristics of reselling. Tara Mandala reserves the right to cancel any subsequent order from a customer who has been suspected of reselling.
10. Fees and Purchase Terms
10.1. Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Tara Mandala with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Tara Mandala with your credit card number and associated payment information, you agree that Tara Mandala is authorized to immediately invoice your Account for all fees and charges due and payable to Tara Mandala hereunder and that no additional notice or consent is required. You agree to immediately notify Tara Mandala of any change in your billing address or the credit card used for payment hereunder. Tara Mandala reserves the right at any time to change its prices and billing methods, either immediately upon posting on Tara Mandala Properties or by e-mail delivery to you.
10.2. Refunds. All fees are non-refundable except as set forth in Tara Mandala’s refund policy available at https://www.taramandala.org/the-center/registration-information/#cancellation .
10.3. Taxes. Tara Mandala’s fees are net of any applicable Sales Tax. If any goods or services are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Tara Mandala, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Tara Mandala for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Tara Mandala is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
10.4. Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official Tara Mandala communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use.
10.5. Disputes. Billing disputes should be notified to the following address: firstname.lastname@example.org.
11. Third-Party Services
11.1. Third-Party Websites and Applications. Tara Mandala Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Tara Mandala Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Tara Mandala. Tara Mandala is not responsible for any Third-Party Websites or Third-Party Applications. Tara Mandala provides links to these Third-Party Websites and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or their products or services. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave our Website or Application, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
11.2. App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and Tara Mandala and not with the App Store. Tara Mandala, not the App Store, is solely responsible for Tara Mandala Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Tara Mandala Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Tara Mandala Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
11.3. Accessing and Download the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Terms are concluded between you and Tara Mandala only, and not Apple, and (ii) Tara Mandala, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Tara Mandala and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Tara Mandala.
(d) You and Tara Mandala acknowledge that, as between Tara Mandala and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Tara Mandala acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Tara Mandala and Apple, Tara Mandala, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and Tara Mandala acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
You agree to indemnify and hold Tara Mandala, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Tara Mandala Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, Tara Mandala Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Tara Mandala reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Tara Mandala in asserting any available defenses. This provision does not require you to indemnify any of the Tara Mandala Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website, Application, or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Tara Mandala Properties.
13. Disclaimer of Warranties and Conditions
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF TARA MANDALA PROPERTIES IS AT YOUR SOLE RISK, AND TARA MANDALA PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TARA MANDALA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE TARA MANDALA PROPERTIES. TARA MANDALA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) TARA MANDALA PROPERTIES WILL MEET YOUR REQUIREMENTS OR (2) YOUR USE OF TARA MANDALA PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14. Limitation of Liability
14.1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TARA MANDALA PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH TARA MANDALA PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT TARA MANDALA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF TARA MANDALA PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE TARA MANDALA PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH TARA MANDALA PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR ELECTRONIC TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON TARA MANDALA PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO TARA MANDALA PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TARA MANDALA PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TARA MANDALA PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A TARA MANDALA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL TARA MANDALA PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO TARA MANDALA BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TARA MANDALA PARTY FOR (X) DEATH OR PERSONAL INJURY CAUSED BY A TARA MANDALA PARTY’S NEGLIGENCE; OR FOR (Y) ANY INJURY CAUSED BY A TARA MANDALA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TARA MANDALA AND YOU.
14.5. Exclusions. THE LAWS OF SOME STATES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS.
15. Procedure for Making Claims of Copyright Infringement
It is Tara Mandala’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Tara Mandala by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Tara Mandala Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Tara Mandala Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written 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; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Tara Mandala’s Copyright Agent for notice of claims of copyright infringement is as follows: Executive Director; 4000 USFS RD 649, Pagosa Springs, CO 81147.
16. Term and Termination
16.1. Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Tara Mandala Properties, unless terminated earlier in accordance with the Terms.
16.2. Termination. If you have materially breached any provision of the Terms, if we are required to do so by law (e.g., where the provision of any of Tara Mandala Properties is, or becomes, unlawful), or if we choose to discontinue Tara Mandala Properties (in part or in whole), we have the right to, immediately and without notice, suspend or terminate any Tara Mandala Properties provided to you. If we become aware of any possible violations by you of the Terms, we reserve the right to investigate such violations. In the event that we determine, in our sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated inappropriate conduct, we reserve the right to (i) warn you via e-mail (to any e-mail address you have provided to us) that you have violated the Terms; (ii) notify and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iii) pursue any other action which we deem to be appropriate. If, as a result of the investigation, we believe that illegal activity has occurred, we reserve the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. We are entitled, except to the extent prohibited by applicable law, to disclose any data, content, or other information on or in Tara Mandala Properties in our possession in connection with your use of Tara Mandala Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms; (c) respond to your requests for customer service; or (d) protect the rights, property or personal safety of Tara Mandala, its users or the public, and to comply with the requests of all law enforcement or other government officials, as we in our sole discretion believe to be necessary or appropriate. We reserve the right, in our sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you. You agree that all terminations shall be made in our sole discretion and that we shall not be liable to you or any third-party for enforcing this provision.
16.3. Effect of Termination. Termination includes removal of access to and barring of further use of the Tara Mandala Properties, including deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Tara Mandala will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of your use of the Tara Mandala Properties, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
16.4. No Subsequent Registration. If your registration(s) with or ability to access Tara Mandala Properties is discontinued by Tara Mandala, you agree that you shall not attempt to re-register with or access Tara Mandala Properties through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Tara Mandala reserves the right, in its sole discretion, to immediately take any or all of the actions set forth in these Terms without any notice or warning to you.
17. International Users
Tara Mandala Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Tara Mandala intends to announce such Services or Content in your country. Tara Mandala Properties are controlled and offered by Tara Mandala from its facilities in the United States of America. Tara Mandala makes no representations that Tara Mandala Properties are appropriate or available for use in other locations. Those who access or use Tara Mandala Properties from other countries do so at their own volition and are responsible for compliance with local law.
18. Dispute Resolution
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Tara Mandala and limits the manner in which you can seek relief from us.
18.1. Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Tara Mandala, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Tara Mandala may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH TARA MANDALA, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST TARA MANDALA ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE TARA MANDALA IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
18.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Executive Director, 4000 USFS RD 649 Pagosa Springs, CO 81147. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Tara Mandala will pay them for you. In addition, Tara Mandala will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Tara Mandala will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
18.3. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Tara Mandala. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
18.4. Waiver of Jury Trial. YOU AND TARA MANDALA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Tara Mandala are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
18.5. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 20.6.
18.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Tara Mandala, Attn: Legal Department, 4000 USFS Road 649, Pagosa Springs, CO 81147 or email@example.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Tara Mandala username (if any), the email address you used to set up your Tara Mandala account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
18.7. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
18.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Tara Mandala.
18.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Tara Mandala makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Tara Mandala.
19. General Provisions
19.1. Electronic Communications. The communications between you and Tara Mandala use electronic means, whether you visit Tara Mandala Properties or send Tara Mandala e-mails, or whether Tara Mandala posts notices on Tara Mandala Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Tara Mandala in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Tara Mandala provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
19.2. Release. You hereby release Tara Mandala Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Tara Mandala Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Tara Mandala Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Tara Mandala Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website, Application, or any Services provided hereunder.
19.3. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Tara Mandala’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
19.4. Force Majeure. Tara Mandala shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
19.5. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Tara Mandala Properties, please contact us at: firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
19.6. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Tara Mandala agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state courts in Archuleta County, Colorado or federal courts located in the District of Colorado.
19.7. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF COLORADO, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS.
19.8. Notice. Where Tara Mandala requires that you provide an e-mail address, you are responsible for providing Tara Mandala with your most current e-mail address. In the event that the last e-mail address you provided to Tara Mandala is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Terms, Tara Mandala’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Tara Mandala at the following address: P.O. Box 3040 Pagosa Springs, CO 81147. Such notice shall be deemed given when received by Tara Mandala by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
19.9. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
19.10. Severability. Subject to Section 19.5, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
19.11. Export Control. You may not use, export, import, or transfer Tara Mandala Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Tara Mandala Properties, and any other applicable laws. In particular, but without limitation, Tara Mandala Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Tara Mandala Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Tara Mandala Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Tara Mandala are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Tara Mandala products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
19.12. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
19.13. Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.