Effective Date: 4/12/2019
SECTION 15 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED ON AN INDIVIDUAL, NON-CLASS ACTION BASIS THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 15 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
By accessing or using taramandala.org, or any other website with an authorized link to this Agreement (“Website”), installing or using our mobile application(s) (“App”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website or App (collectively with the Website and App, the “Services”), clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement.
Subject to Section 15.8 of this Agreement, Tara Mandala reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. Registration. When registering an account for the Services (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Tara Mandala immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same Tara Mandala service at any given time. Tara Mandala reserves the right to remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Tara Mandala.
2. Order Process.
2.1 Order Acceptance. Each part of any order that you submit to Tara Mandala constitutes an offer to purchase. If you do not receive a message from Tara Mandala confirming receipt of your order, please contact our Customer Service department before re-entering your order. Tara Mandala’s confirmation of receipt of your order does not constitute Tara Mandala’s acceptance of your order. Tara Mandala is only deemed to have accepted your order once (i) the product(s) you ordered have been shipped, (ii) your membership is activated or (iii) you are granted access to the online course (product(s) ordered, memberships, and online courses, collectively, the “Product”). If you do not receive an email from Tara Mandala confirming receipt of an order that you placed, please contact Tara Mandala here before you attempt to place another order.
2.2 Order Issues. Although we strive to accept all valid orders, Tara Mandala reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product or receive insufficient or erroneous billing, payment, and/or shipping information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute.
2.3 Order Cancellation. If any Product is discontinued or otherwise becomes unavailable, Tara Mandala reserves the right to (i) cancel your order and provide you a refund for the amount paid for the Product or (ii) for online courses, if you have already commenced an online course, issue you a pro rata refund.
2.4 Restrictions on Resale. To protect the intellectual property rights of Tara Mandala and its licensors and suppliers, any resale of Products for personal and/or business profit is strictly prohibited. Tara Mandala reserves the right to decline any order that we deem to possess characteristics of reselling.
2.5 Online Courses.
(a) 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 Lung for the applicable online course.
(b) 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.
3. Fees and Purchase Terms.
3.1 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 also agree to pay all applicable taxes. You must provide Tara Mandala with valid payment information in connection with your orders. By providing Tara Mandala with your payment information, you agree that (i) Tara Mandala is authorized to immediately invoice your Account for all fees and charges due and payable to Tara Mandala hereunder, (ii) Tara Mandala is authorized to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services, including without limitation, Stripe, Authorize.net, and Recharge), and (iii) no additional notice or consent is required for the foregoing authorizations. You agree to immediately notify Tara Mandala here of any change in your payment information. Tara Mandala reserves the right at any time to change its prices and billing methods. Please contact our accounts department regarding any billing disputes.
3.2 Subscription Fees. The fee amount and subscription period for any subscription Products you purchase will be stated at the time of order. Subscription fees for predefined periods will be billed at the beginning of your initial subscription period and at the beginning of any renewal period.
3.3 Automatic Renewal. If your order is subject to automatic renewal, you will be notified of this feature during the order process. The automatic renewal and cancellation terms provided during the order process are hereby incorporated into this Agreement. We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance of a renewal. Your subscription will renew automatically and your payment method on file will be charged unless we terminate your subscription or you notify Customer Service by telephone (970) 731-3711, ext 10 or contact our accounts department here of your decision to terminate your subscription. You may also visit here and follow the instructions to terminate your subscription. If your subscription is annual, you will receive a reminder of your renewal at least 30 days before renewal fees are charged to your payment method on file. You must cancel your subscription before it renews in order to avoid charges of subscription fees for the renewal term. If you want to use a different credit card or there is a change in credit card validity or expiration date, please contact Customer Service here or call 970-731-3711, ext. 106.
3.4 Refunds. Except as set forth in Section 2.3 or in any separate refund policy posted on the Services, all fees are non-refundable.
3.5 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 forum 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 redeemable for cash; and (vi) may expire prior to your use.
4. User Content.
4.1 Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that that User makes available through the Services (“User Content”). Tara Mandala has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, Tara Mandala reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Tara Mandala shall have the right to remove any content that violates this Agreement or is otherwise objectionable to Tara Mandala.
4.2 Ownership of Your Content. Tara Mandala does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Tara Mandala the license set forth in Section 4.3. 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 the Services.
4.3 License to Your Content. Subject to any applicable Account settings that you select, you grant Tara Mandala a right to use and display Your Content (in whole or in part) for its own business purposes, including without limitation, to operate and improve the Services, analyze Users’ use of the Services, and develop new products and services.
4.4 Note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.
4.5 Other Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services 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, 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; or (v) impersonates any person or entity, including any employee or representative of Tara Mandala. You may not send any unsolicited e-mail message, commercial or non-commercial, to any e-mail address you have gathered from the Services.
5. Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to Tara Mandala (“Feedback”) is at your own risk and that Tara Mandala has no obligations 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 the right to use any Feedback in any way at any time without any additional approval or compensation.
6. Ownership of and License to Use Tara Mandala Properties.
6.1 Use of the Services. Except with respect to User Content, Tara Mandala and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Tara Mandala grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Tara Mandala, its suppliers and service providers reserve all rights not granted in this Agreement.
6.2 Trademarks. Tara Mandala’s stylized name and other related graphics, logos, trademarks, service marks and trade names used on or in connection with the Services (including without limitation, Education Week, Digital Directions, Technology Counts, Quality Counts, American Education’s Newspaper of Record, Topschooljobs.org, and Education Week Teacher) are the property of Tara Mandala and may not be used without our written permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
7. Restrictions on Use of Services. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, service mark, logo or Services (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, service marks, or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services 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 the Services (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 the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by Tara Mandala pursuant to this Agreement.
8. Third Party Services.
8.1 Links. The Services may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Tara Mandala Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
8.2 App Stores. You acknowledge and agree that the availability of the App is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play Store (“App Store”). You acknowledge that this Agreement is between you and Tara Mandala and not with the App Store. Tara Mandala, not the App Store, is solely responsible for Services, including the App, 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 App, 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 Services, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Services, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.
8.3 Additional Terms for Apple Apps. With respect to any App 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. In addition, the following terms apply to any App Store Sourced Application:
(a) You acknowledge and agree that (i) this Agreement is 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 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, privacy, 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 this Agreement
(f) You and Tara Mandala acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement 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 this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application..
9. Indemnification. You agree to indemnify and hold Tara Mandala, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “Tara Mandala Indemnitees”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (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 Indemnitees for any unconscionable commercial practice by such party or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Services.
10. Disclaimer of Warranties and Conditions. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY PRODUCTS OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TARA MANDALA INDEMNITEES 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 SERVICES AND PRODUCTS. TARA MANDALA INDEMNITEES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES OR ANY PRODUCTS WILL MEET YOUR REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE SERVICES ARE ACCURATE, COMPLETE, OR CURRENT; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (4) ANY ERRORS IN THE SERVICES OR PRODUCTS WILL BE CORRECTED; (5) YOUR USE OF THE SERVICES WILL NOT EXPOSE YOUR HARDWARE OR NETWORKS TO ADDITIONAL SECURITY RISK; OR (6) THE SERVICES WILL BE COMPATIBLE WITH YOUR DEVICES. YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL AND/OR DATA DOWNLOADED FROM OR OTHERWISE PROVIDED THROUGH THE SERVICES.
THE MATERIAL THAT APPEARS ON OUR SERVICES IS FOR INFORMATIONAL PURPOSES ONLY. DESPITE OUR EFFORTS TO PROVIDE USEFUL AND ACCURATE INFORMATION, ERRORS MAY APPEAR FROM TIME TO TIME. IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH OUR PRODUCTS OR SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
OUR PRODUCTS AND SERVICES ARE PROVIDED WITH THE UNDERSTANDING THAT TARA MANDALA AND ITS USERS ARE NOT ENGAGED IN RENDERING LEGAL, MEDICAL, COUNSELING OR OTHER PROFESSIONAL SERVICES OR ADVICE. OUR PRODUCTS AND SERVICES ARE NO SUBSTITUTE FOR PROFESSIONAL SERVICES OR ADVICE. THE TARA MANDALA INDEMNITEES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR MATERIALS OR PRODUCTS MADE AVAILABLE THROUGH THE SERVICES.
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.
11. Limitation of Liability.
11.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TARA MANDALA INDEMNITEES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT TARA MANDALA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Disclaimer of Third Party Conduct. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE TARA MANDALA INDEMNITEES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTIES ON THE SERVICES, INCLUDING WITHOUT ANY LIMITATION, ANY USERS OF THE SERVICES.
11.3 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE TARA MANDALA INDEMNITEES ARE LIABLE TO YOU EXCEED THE LESSER OF (A) THE TOTAL AMOUNT ACTUALLY 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 OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100).
11.4 User Content and Settings. THE TARA MANDALA INDEMNITEES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
11.5 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.
11.6 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. IN ADDITION, THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY.
12. Procedure for Making Claims of Copyright Infringement. If you believe content posted on the Services infringes your copyright rights, 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 the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement 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. Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: Tara Mandala, Executive Director; 4000 USFS RD 649, Pagosa Springs, CO 81147.
13. Termination. At its sole discretion, Tara Mandala may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Tara Mandala reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Tara Mandala for Products purchased will remain due.
14. International Users. The Services are controlled and offered by Tara Mandala from its facilities in the United States of America. Tara Mandala makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
15. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Tara Mandala, its parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives (collectively, the “Tara Mandala Parties”) and limits the manner in which you can seek relief from the Tara Mandala Parties.
15.1 Applicability of Arbitration Agreement. You agree that any dispute between you and any of the Tara Mandala Parties relating in any way to the Services, the Products, or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you and the Tara Mandala Parties may assert individualized claims in small claims court if the claims qualify, remain in such court and advance solely on an individual, non-class basis; and (2) you or the Tara Mandala Parties 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 survive the expiration or termination of this Agreement and 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. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the Tara Mandala Parties on your behalf.
15.2 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 Tara Mandala, 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 with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ 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 you cannot obtain a waiver from JAMS, Tara Mandala will pay them for you.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the U.S. county 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.
15.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all disputes subject to arbitration hereunder including, without limitation, any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement and any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and the Tara Mandala Parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. 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 the Tara Mandala Parties.
15.4 Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 15.1, YOU AND THE TARA MANDALA PARTIES 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 the Tara Mandala Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in Section 15.1 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.
15.5 Waiver of Class or Other Non-Individualized Relief. BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND EACH OF THE TARA MANDALA PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ALL CLAIMS AND DISPUTES SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS SUBJECT TO ARBITRATION UNDER THIS ARBITRATION AGREEMENT, AND CLAIMS OF ONE USER OR PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH CLAIMS OF ANY OTHER USER OR PERSON. If applicable law precludes enforcement of any of this Section 15.5’s limitations as to a given claim for relief, then the applicable claim must be severed from the arbitration and may be brought into the state or federal courts located in Maryland in accordance with Section 16.5. All other claims shall be arbitrated.
15.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Tara Mandala, Executive Director; 4000 USFS RD 649, Pagosa Springs, CO 81147 or email to our Executive Director here, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear 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 with us, or may enter into in the future with us.
15.7 Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Tara Mandala.
15.8 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, you may reject that change within thirty (30) days of such change becoming effective by writing Tara Mandala at the following address: Tara Mandala, Executive Director; 4000 USFS RD 649, Pagosa Springs, CO 81147.
16. General Provisions.
16.1 Electronic Communications. The communications between you and Tara Mandala use electronic means, whether you visit the Services or send Tara Mandala e-mails, or whether Tara Mandala posts notices on the Services 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 and documents that Tara Mandala provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.
16.2 Assignment. This Agreement, 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.
16.3 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.
16.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact our customer service department using the contact information available on the Services. We will do our best to address your concerns.
16.5 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 this Agreement that are not brought in a small claims court pursuant to Section 15.1 will be litigated exclusively in the state courts in Archeluta County, Colorado or federal courts located in the Colorado
16.6 Governing Law. THIS AGREEMENT 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 CONFLICT OF LAW OR OTHER 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 THIS AGREEMENT.
16.7 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 this Agreement, 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: Tara Mandala, Executive Director; 4000 USFS RD 649, 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.
16.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.9 Severability. Subject to Section 15.5, 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.
16.10 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services 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 the Services, 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 the Services for any purpose prohibited by U.S. law.
16.11 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.
16.12 Entire Agreement. This Agreement is 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.