EXECUTIVE NETWORKS, INC. TERMS OF SERVICE
Last Updated: 02/23/2024
These Terms of Service (“Terms”) apply to and govern your access to and use of the websites, mobile applications and other online or digital products and services (collectively, the “Services”) provided by Executive Networks, Inc. (“ENI” or “we”). By clicking [“I Accept”] or by using our Services, you agree to be legally bound by all of the terms, conditions and notices contained or referenced in these Terms. If you do not agree to these Terms, do not use our Services.
We may make changes to these Terms from time to time. If we make such changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes and the amended Terms. If you do not agree to the amended Terms, you must stop using our Services.
If you have any questions about these Terms or our Services, please contact us at support@executivenetworks.com.
1. Privacy
For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.
2. Eligibility
You must be at least 18 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
3. User Accounts and Account Security
Subject to these Terms, you may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
4. User Content; License Granted
Our Services may allow you and other users to create, post, store and share content, including messages, resume materials, professional development goals, professional recommendations, text, photos, videos, webinars, articles, and other materials (in written, visual, live and/or pre-recorded format) (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and ENI.
You grant ENI a nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reuse, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. Depending on your account settings, when you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information may be visible to others. ENI is free to use any ideas, concepts, know-how, or techniques contained in any User Content for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products related to the Services using such information. For the sake of clarity, this nonexclusive license shall include the right for ENI to incorporate User Content into recorded presentations and lessons to be hosted by ENI and further distributed by ENI.
You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no
obligation to screen, edit, or monitor User Content, we may delete or remove User Content at any time and for any reason with or without notice.
ENI does not and cannot review all User Content, nor is ENI under any obligation to edit or control User Content that you or other users create, post, store or share and will not be in any way responsible or liable for User Content.
ENI reserves the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or government request, or to edit, screen, block, refuse to post, or to remove any information or materials, in whole or in part, that in ENI’s sole discretion are objectionable or in violation of these Terms or alleged to violate the rights of third parties and/or applicable rule, law or regulation.
You understand that, when using our Services, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice.
You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:
· Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
· Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
· May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
· Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
· Impersonates, or misrepresents your affiliation with, any person or entity;
· Contains any unsolicited promotions, political campaigning, advertising or solicitations;
· Contains any private or personal information of a third party without such third party’s consent;
· Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
· In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose ENI or others to any harm or liability of any type.
5. Prohibited Conduct and Content
You are solely responsible for your conduct while using our Services and will not violate any applicable rule, law or regulation, contract, intellectual property right or other third-party rights. You further acknowledge that you will not:
· Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
· Use or attempt to use another user’s account without authorization from that user and ENI;
· Use any incomplete, false or inaccurate biographical information or other information for purposes of registering as a user of the Services;
· Allow any other person or entity to use your username or password for posting or viewing comments or sending or receiving materials;
· Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
· Sell, resell or commercially use our Services;
· Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
· Distribute, post, communicate or store information or other material on, to or through the Service that is (i) copyrighted, (ii) reveals trade secrets, or infringes on any other intellectual property rights of others or on the privacy or publicity rights of others, (iii) obscene, defamatory, threatening, harassing, abusive, hateful, slanderous or embarrassing to any other person or entity as determined by ENI in its sole discretion; (iv) sexually explicit; (v) constitutes advertisements or solicitations of business, surveys, contests, chain letters or pyramid schemes, or (vii) violates any rule, law or regulation.
· Delete or revise any material or other information of ENI;
· Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
· Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
· Reverse engineer, decipher, decompile or disassemble any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
· Use any device, software or routine to interfere or attempt to interfere with the proper working of our Service or any activity being conducted;
· Take any action that imposes an unreasonable or disproportionately large load on our Service’s infrastructure or interferes or attempt to interfere with the proper working of the Services;
· Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
· Develop or use any applications that interact with our Services without our prior written consent;
· Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
· Bypass or ignore instructions contained in our robots.txt file; or
· Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
You further agree not to violate or attempt to violate the security of the Services, including, without limitation:
· Accessing data not intended for you or logging into a server or account that you are not authorized to access;
· Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
· Attempting to interfere with service to any user, host or network, including, without limitation, by way of submitting a virus to, or overloading, “flooding”, “spamming”, “mailbombing” or “crashing”, the Services;
· Sending unsolicited e-mail, including promotions and/or advertising of products or services; or
· Forging any TCP/IP packet header or any part of the header information in any e-mail or posting. Violations of system or network security may result in civil or criminal liability. ENI will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
Enforcement of this Section 5 is solely at ENI’s discretion, and failure to enforce this Section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
6. Ownership; Limited License; Restriction on Use
Subject to your compliance with these Terms and Section 5, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Such license does not include the right to sublicense to your customer’s or other end users. The use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and will violate our intellectual property rights.
You acknowledge that the Services contain information, text, photos, webinars, videos, sounds, graphics, artwork, user and visual interfaces, questions, creative suggestions, messages, comments, feedback, ideas, articles and other materials (collectively, “Content”) that are protected by copyrights, patents, trademarks, service marks, trade secrets and/or other intellectual and proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is owned, controlled, or licensed by or to us and is protected by law, including United States copyright laws, and, if applicable, similar foreign laws. Subject to any copy or other rights of the original owners of such Content, we also own a copyright in the selection, coordination, arrangement and enhancement of such Content.
Your right to access and use our Services is personal to you and is not transferable by you to any other person or entity. You are only entitled to access and use our Services for lawful purposes. The Content and all other material and data used in our Services are not to be redistributed, copied, resold, or otherwise disseminated unless specifically authorized by us. You are not authorized to, and agree not to, download, display, distribute or use any of ENI’s intellectual property, including, without limitation, the Content, and other materials or data used in the Services, in any publication, advertising, publicity or any other commercial or non-commercial manner that is likely to cause confusion among consumers, that disparages or discredits ENI and/or its software or intellectual property licensors, that dilutes the strength of ENI’s or its licensors’ property, that infringes on ENI’s or its licensors’ intellectual property rights or that otherwise is in violation or contrary to what is permitted under these Terms. When Content is downloaded to your computer or any mobile or other device, you do not obtain any ownership in such Content.
7. Trademarks
All rights in the product names, company names, trade names, logos, product packaging and designs of all ENI or third-party products or services, whether or not appearing in large print or with the trademark symbol, belong exclusively to ENI or their respective owners, and are protected from reproduction, imitation, dilution or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited and nothing stated or implied in these Terms confers on you any license or right under any patent or trademark of ENIs or any third party. You acknowledge that the Services contains information, data, software, graphs, photos, videos, webinars, typefaces, graphics, music, sounds, and other material that are protected by copyrights, trademarks, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
8. Use of Artificial Intelligence
The Services may refer to or discuss one or more artificial intelligence (“AI”) features that leverage machine-learning functionality (“AI Features”), which serves the purpose of improving
our Services. The reference, use, incorporation or application of AI and/or AI Features in our Services does not constitute or imply endorsement, sponsorship or recommendation by us.
ENI MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE, INCORPORATION OR APPLICATION OF AI AND/OR AI FEATURES IN OUR SERVICES, EXPRESS OR IMPLIED AND IN FACT OR IN LAW. YOU HEREBY WAIVE ANY CLAIMS ARISING FROM OUR USE, INCORPORATION OR APPLICATION OF AI AND/OR AI FEATURES IN OUR SERVICES AND SUCH WAIVER IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY LAW. IN NO EVENT SHALL ENI BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES, LOSS OR HARM, WHETHER DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL WHICH YOU MAY INCUR BY THE USE, INCORPORATION OR APPLICATION OF AI AND/OR AI FEATURES IN OUR SERVICES.
9. Feedback
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about ENI or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in ENT’s sole discretion. You understand that ENI may treat Feedback as nonconfidential.
10. Repeat Infringer Policy; Copyright Complaints
ENI and each of its subsidiaries, as applicable, operate and have operated the Services in such a manner as to take reasonable advantage, if and when applicable, of the safe harbors provided by 17 USC. § 512 as amended by Title II of the Digital Millennium Copyright Act (the “DMCA”). Pursuant to the DMCA, (i) we have instituted procedures to receive written notification (the “Notice of Infringement”) of claimed infringements (as further set out below) and to process such claims in accordance with the DMCA, and (ii) have adopted a policy of terminating, in appropriate circumstances and in ENI’s sole discretion, users, subscribers or account holders who are deemed to be repeat infringers.
ENI takes its responsibilities regarding copyright law very seriously, and will take prompt appropriate action upon receipt of a Notice of Infringement that substantively complies with the provisions of the DMCA. In the event you believe that your intellectual property may be infringed by something appearing on our website or in our services, please send the appropriate Notice of Infringement to the contact information below. Also, please note that
if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to ENI for certain costs and damages.
Designated Agent: Mario Nunez
Address:
Attn: Mario Nunez
Executive Networks, Inc.,
588 Sutter Street Suite 440. San Francisco, CA 94102
Telephone Number:
(415)399-9797
E-Mail Address: mnunez@executivenetworks.com
11. Third-Party Content
We may provide or offer information, commentary and tools supplied by or about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content and our inclusion of any Third-Party Content is not an endorsement of such content. 2
Additionally, the Services may contain links to other Internet websites and services owned by third parties (“Third-Party Services”). Any use of Third-Party Services is at your own risk and subject to the terms of use with respect to such Third Party Services.
Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content and/or Third-Party Services are solely between you and the third party. ENI does not control or endorse, and makes no representations or warranties regarding any Third-Party Content and Third-Party Services, including without limitation, material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. Your access to and use of such Third-Party Content and Third-Party Services is at your own risk.
Furthermore, while ENI reserves the right, it has no obligation to monitor any Third-Party Content or Third-Party Services. You must take all precautions necessary to protect itself, and its computer systems from viruses, worms, Trojan horses, and other harmful or destructive
materials. ENI disclaims any responsibility for any harm, loss or damage resulting from or related to any Third-Party Content or Third-Party Services.
12. Obligations
You are required to comply with all applicable law in connection with your use of our Services, and such further limitations as may be set forth in any written or on-screen notice from eni. As a condition of your use of our Services, you warrant that you will not use our Services for any purpose that is unlawful or prohibited by these Terms.
13. Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless ENI and ENI’s affiliates and its’ and their respective employees, officers, directors, shareholders, service providers, suppliers, agents, partners and other representatives (individually and collectively, the “ENI Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You agree to promptly notify ENI Parties of any third-party Claims, cooperate with ENI Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the ENI Parties will have control of the defense or settlement, at EN l’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and ENI or the other ENI Parties or rights made available to ENI at law or in equity.
14. Disclaimer of Warranties
ALL ENI PLATFORMS AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND ENI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF (I) MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF ENI HAS BEEN INFORMED OF SUCH PURPOSE (II) TITLE, (III) NONINFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (IV) ANY IMPLIED WARRANTIES ARISING THROUGH A COURSE OF DEALING, USAGE OR TRADE PRACTICES, (V) ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET ANY USER’S REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR ERRO
RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, AND (VII) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY SMART-REACH OR ANY THIRD PARTY. ENI FURTHER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE ENI WEBSITE OR ANY OF THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND ENI EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATING THERETO. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG THEY LAST, THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, IN WHICH CASE THEY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
15. Exclusion of Consequential Damages; Limitation of Liability
YOU UNDERSTAND AND EXPRESSLY AGREE THAT USE OF THE ENI WEBSITE AND THE SERVICES IS AT YOUR SOLE RISK, THAT ANY INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE ENI WEBSITE OR THE SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS, IN ANY FORM, THAT RESULTS FROM YOUR ACCESS TO OR USE OF ENI’S WEBSITE AND/OR SERVICES, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE SERVICE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THE ENI’S RECORDS, PROGRAMS, OR SERVICES. THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ENI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU HEREBY ACKNOWLEDGE THAT THIS SECTION SHALL APPLY TO ALL SERVICES, INCLUDING, WITHOUT LIMITATION, PRODUCTS, SERVICES, CONTENT, USER CONTENT AND MATERIALS AVAILABLE THROUGH ALL CHANNELS OF ENI’S SERVICES INCLUDING, BUT NOT LIMITED TO, THE INTERNET, TELEPHONE, CATALOG, RADIO, TELEVISION, MOBILE DEVICE, SOCIAL MEDIA PLATFORM AND ANY PHYSICAL LOCATIONS.
IN NO EVENT SHALL ENI OR ENI PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS AND OTHER COMMERCIAL DAMAGES) THAT RESULT
FROM THE USE OF THE ENI WEBSITE OR ANY OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE INCORPORATION AND APPLICATION OF AI AND AI FEATURES, OR FROM ANY INCONVENIENCE, DELAY OR LOSS OF THE USE OF THE ENI WEBSITE OR ANY OF THE SERVICES, EVEN IF ENI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THAT THESE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU, IN WHICH CASE THEY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
16. Release
To the fullest extent permitted by applicable law, you irrevocably release ENI and the ENI Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code §1542, which provides: “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.”
Additionally, you consent to being recorded, photographed, and videotaped during ENI’s performance of the Services, and hereby irrevocably and perpetually release and authorize ENI to copyright, publish, reproduce, exhibit, transmit, broadcast, televise, digitize, display, otherwise use, and permit others to use (i) the your name, image, likeness, and voice, and (ii) all photographs, recordings, videotapes, audiovisual materials, writings, statements, and quotations of or by you obtained related to the Services (collectively, the “Materials”), in any manner, form, or format whatsoever now or hereinafter created, and for any lawful purpose, including, the advertising or promotion of ENI and/or the Services without further consent from or payment to you. You agree that all of the Materials, and all films, audiotapes, videotapes, reproductions, media, plates, negatives, photocopies, and electronic and digital copies of the Materials are the sole property of ENI and you further agree not to contest the rights or authority granted to the ENI hereunder. You acknowledge and agree that: (i) You shall not be entitled to any compensation for your appearance related to the Services or subsequent use of your appearance in the Materials, (ii) You have and will refrain from any offensive or distasteful remarks or conduct and will conduct itself in a courteous and professional manner at all times during your participation in the Services and appearance in the Materials, and (iii) this Section is
intended to be as broad and inclusive as permitted by applicable law. You understand that under no circumstance is ENI or the ENI Parties under any obligation to use the Materials. If you disagree with any of the above, for example if you do not consent to your likeness being recorded and used in the Materials or if you change your mind at a future date and decide that you would like your likeness removed from the Materials, please send written notice of your request to legal@executivenetworks.com. Such written notice should include your legal name (and, if different, the name or username used by you during your participation in the Services), the date or approximate date of your participation in the Services, and any other information sufficient for ENI to identify the relevant Materials and expedite compliance with your request.
17. Transfer and Processing Data
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States. Please refer to our Privacy Policy for further information regarding our use of such information.
18. Subscription, Service, Use Fees
You agree to pay all subscription, membership, service and use fees, if any, that you are charged by ENI for the Services to which you have subscribed and agree that such fees may be changed without notice. You agree to pay all costs (including without limitation reasonable attorneys’ fees), if any, incurred by ENI in collecting overdue fees from you. You also agree to pay all federal, state and local taxes applicable to your use or receipt of the Services.
19. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with ENI and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.
No Representative Actions. You and ENI agree that any dispute arising out of or related to these Terms or our Services is personal to you and ENI and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
Arbitration of Disputes. Except for small claims disputes in which you or ENI seeks to bring an individual action in small claims court located in the county of your billing address or disputes in
which you or ENI seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and ENI waive your rights to a jury trial and to have any dispute arising out of or related to these Terms, our Services, or privacy and data security claims resolved in court. Instead, for any dispute or claim that you have against ENI or relating in any way to the Services, you agree to first contact ENI and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to ENI by email at legal@executivenetworks.com or by certified mail addressed to Attn: Legal, Executive Networks, Inc., 588 Sutter Street, Suite 440, San Francisco, CA 94102. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and ENI cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may submit the dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in San Francisco, California or may be conducted telephonically or via video conference for disputes alleging damages less than $1,000.00, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules is available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
You and ENI agree that these Terms affect interstate commerce and that the enforceability of this Section 19 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
The arbitrator, ENI, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality unless the law
provides to the contrary. The duty of Confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
You and ENI agree that for any arbitration you initiate, you will pay the filing fee and ENI will pay the remaining JAMS fees and costs. For any arbitration initiated by Company, ENI will pay all JAMS fees and costs. You and ENI agree that the state or federal courts of the State of California and the United States sitting in San Francisco County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and ENI will not have the right to assert the claim.
You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 19 by writing to us at Attn: Legal, Executive Networks, Inc., 588 Sutter Street, Suite 440, San Francisco, CA 94102. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 20.
If any portion of this Section 19 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 19 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 19; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 19 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 19 will be enforceable.
20. Governing Law and Venue
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in San Francisco County, California.
21. Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any damage, loss and/or harm related to your inability to access or use our Services.
22. Severability
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
23. Miscellaneous
The failure of ENI to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.