Effective Date: January 15, 2021
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
- Accessing the Services
- Using the Services
- User Content
- User Guidelines
- Ownership of the Services
- Providing the Services
- Links to Third-Party Websites
- No Legal Advice
- Notice of Claims of Copyright Infringement
- Other Enforcement Actions
- Defending Users and Organizations
- Warranty Disclaimers
- Limitation of Liability
- Arbitration and Class Action Waiver
- Governing Law and Jurisdiction
- Special Notice for California Users
- Changes to these Terms
- Third-Party Discovery
- Electronic Communication
- Entire Agreement
- Contact Us
1. Accessing the Services
The Services are intended only for adult users located in the United States of America. The Services are not intended for minors. Minors, defined as 17 years old or younger, are expressly prohibited from using the Services, registering an Account (as defined below), or providing us with any personal information. If you become aware that a minor has provided us with personal information, please contact us at email@example.com. If we become aware that we have inadvertently obtained information in violation of applicable laws, we will delete such information if we can identify it. The Services are for your personal, non-commercial use unless you enter into a separate agreement with us for your commercial use.
You may only use the Services if you comply with the user guidelines detailed in the User Guidelines section below (the “User Guidelines”). We reserve the right in our sole discretion to suspend or ban access or use of the Services for anyone and for any reason, including but not limited to those who fail to comply with the User Guidelines or otherwise violate these Terms. You may not use the Services if we have banned you.
2. Using the Services
The Services allow you to document information about inappropriate behavior in a workplace environment for your own record-keeping purposes and, if you so choose, for reporting this behavior to a third party. Inappropriate behavior may occur at your place of employment, as part of an interview or job placement process, or during events outside your place of employment where other people employed by your employer are present. While we invite you to specify a variety of information, including personal information that identifies you and the other individual(s) involved, we do not consider this information a requirement and we enable you to determine how much information you provide to us. Please understand that you are solely responsible for any and all content and information that you submit to the Services (“User Content”). You understand that you may expose yourself to liability if your User Content or other use of the Services violates applicable law or any third-party rights.
- Your Account
In order to access and/or use certain aspects of the Services, we may require you to create a user account (an “Account”). YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO OWNERSHIP OR OTHER PROPRIETARY INTEREST IN SUCH ACCOUNT. To create an Account, we may require or request that you provide us with certain personal information (e.g., your name and/or e-mail address). Providing Anita with your personal information is your choice. Each time you decide to provide Anita with your personal information, you agree to: (a) provide accurate information about yourself as prompted by our registration form (including your current email address), and (b) maintain and update your Account information (including your email address) to keep it accurate and current. To create an Account, we require you to select a password. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR PASSWORD AND ALL ACCESS TO AND USE OF YOUR ACCOUNT, INCLUDING ANY AND ALL ACTIVITIES THAT ARE CONDUCTED THROUGH THE USE OF YOUR ACCOUNT WHETHER OR NOT AUTHORIZED BY YOU. You agree that Anita has the right in its sole discretion to suspend or terminate your Account and refuse any and all current or future use of the Services or any portion thereof.
You agree not to transfer or resell or otherwise convey your Account or the right to use your Account or rights therein to anyone. If you have a reason to believe that your Account is no longer secure, you must: (i) promptly change your password and (ii) immediately notify us of the problem by emailing us at firstname.lastname@example.org (with the subject line: “Account Password Security Issues”).
You may not use anyone else’s Account at any time, and you may not allow anyone else to use your Account at any time. You agree that Anita will not be liable for any loss you may incur as a result of someone else using your Account, either with or without your knowledge, and you further agree that you will be liable for losses incurred by Anita or another party due to someone else using your Account. Because of this, Anita strongly recommends that you sign out of your Account at the end of each session.
- Creating Records
Once you have created an Account, you can use the Services to create a new record to document the details of your workplace harassment and discrimination experiences, which includes the ability to upload supporting image attachments (e.g., screenshots or photos). Once you have created and confirmed a new record, it will be saved in a timestamped record on your Account dashboard. Except as otherwise set forth herein, you will be able to view this record at any time. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT BE ABLE TO EDIT OR DELETE A RECORD ONCE IT HAS BEEN CREATED AND CONFIRMED.
- Creating Reports
If at any point you wish to download any records from your Account dashboard for purposes of saving and/or sharing them with others, you can use the Services to create a PDF format “electronic Report” (a “Report”). This means that you can select from your Account dashboard which records you would like included in the Report, and Anita will generate a PDF that you can download to save and/or share. Your records will populate on your Account dashboard so you can retrieve or view them.
The Report will include your first and last name, and the details and attachments associated with the records that you have selected to include.
3. User Content
Grant of Operations License
Protecting User Content
4. User Guidelines
You represent and warrant that you will use the Services solely for lawful purposes in a manner consistent with these Terms, and you agree that you will not:
- impersonate another person or his or her email address, or misrepresent your current or former affiliation with any organization;
- create Reports under false or fraudulent pretenses;
- use the Services for anyone other than yourself;
- violate these Terms, the terms of any other agreement with us, or any applicable law, rule or regulation;
- act in a manner that is harassing, threatening, abusive, racist, or bigoted, or is otherwise objectionable;
- promote, endorse or further illegal activities;
- disclose information in violation of any legally enforceable confidentiality, non-disclosure, or other contractual restrictions or rights of any third party
- violate the privacy, publicity, copyright, patent, trademark, trade secret, or other intellectual property or proprietary rights of any third party;
- post anything pornographic, or engage in the exploitation of persons in a sexual or violent manner;
- use the Services for unauthorized commercial activities and/or promotions such as contests, sweepstakes, barter, pyramid schemes, advertising, affiliate links, and other forms of solicitation;
- imply or explicitly represent an endorsement or partnership relationship of any kind with the Services and/or Anita without our express written permission;
- send messages in violation of the USA CAN-SPAM Act or any other applicable anti-spam law;
- introduce software or automated agents to the Services, or access the Services so as to generate automated messages, or to scrape, strip, or mine data from the Services, without our express written permission;
- “frame” or “mirror” or otherwise incorporate part of the Services into any website, or “deep-link” to any portion of the Services, without our express written permission;
- copy, modify, or create derivative works of the Services or any content (excluding User Content) without our express written permission;
- copy or use the information, content (excluding your User Content), or data on the Services in connection with a competitive service, as determined by Anita in our sole discretion;
- sell, resell, rent, lease, loan, trade, or otherwise monetize access to the Services or any content on the Services without our express written permission;
- interfere with, disrupt, modify, reverse engineer, or decompile any data or functionality of the Services;
- interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services;
- introduce any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software to the Services; or
- attempt to circumvent any security feature of the Services.
5. Ownership of the Services
Subject to your rights in your User Content described above, Anita and its licensors exclusively own all right, title, and interest in and to the Services, including all images, text, and other content provided or made available within, or in conjunction with, the Services, and all associated intellectual property rights therein. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States of America and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services. Anita hereby grants to you a revocable, nontransferable, nonexclusive license right to access and use the Services, in accordance with these Terms. Except for this license, Anita retains all rights, title, and interests in and to the Services.
6. Providing the Services
Anita will endeavor to make the Services available 24 hours a day, 7 days a week, excluding such periods when the Services may be unavailable due to necessary maintenance, updates or other factors, and unanticipated downtime. We anticipate that service unavailability will be infrequent and of very limited durations. Should we know that there will be any extended unavailability, we will use reasonable efforts to provide advance notice to you. However, Anita does not offer any guarantee or warranty that the Services will be available at all times or that it will continue to be offered indefinitely.
Working with Third Parties
We retain the right, at our sole discretion, to modify the Services at any time, with or without notice, including modifications that may affect the previous mode of operation of the Services. We expect that any such modifications will enhance the Services, but it is possible that you may not agree with us. For example, we may create a new tier of the Services or one or more additional features that would only be available to a new type of Account. We also reserve the right to change the information we require from you in order to use the Services.
Support and updates
While we expect to provide updates and other modifications to the Services from time to time, as well as guidance on how to use the Services as they are updated, we shall not have any obligation to provide specific support to you with respect to the use or modification of the Services.
We may share information about anticipated future enhancements or other changes to the Services, but you should not rely upon those enhancements or changes when deciding to use the Services. Your decision to use the Services should be based upon the functionality available when you are making that decision and not on the potential future functionality.
Beta Products and Services
You acknowledge and agree that certain Anita products and services may be made available through the Service to select customers on a beta or trial basis, that such products and services may contain bugs, defects, and errors, and that such products and services are not expected to function fully when first made available.
7. Links to Third-Party Websites
The Services may contain links to third-party websites or services intended for those interested in certain services or information. Your use of all such links to third-party websites or services is at your own risk. We do not monitor or have any control over, and make no claim or representation regarding, third-party website content or services, or the parties operating them. We cannot ensure that such links will continue to operate properly or direct you to the intended location. To the extent we provide such links, they are provided only as a convenience, and a link to a third-party website or service does not imply our endorsement, adoption, or sponsorship of, or affiliation with, such third-party website or service, or their endorsement or affiliation with the Services or Anita. When you leave the Services, our terms and policies do not govern your use of third-party websites or services, so please review their terms and policies carefully.
8. No Legal Advice
Anita does not provide any legal advice through our offering of the Services or otherwise. We provide the Services in an effort to enable you to promptly document and preserve experiences that may or may not constitute discrimination, harassment, or other illegal or improper activity in the jurisdiction in which you work. If you feel that you have been treated unfairly at work, we encourage you to use the Services to document your experience should you wish to pursue a legal or other remedy. We will endeavor to provide guidance on our Resources page as to what constitutes unlawful discrimination and harassment in certain jurisdictions. YOU ACKNOWLEDGE AND AGREE THAT (A) YOU WILL NOT CONSTRUE ANY ASPECT OF THE SERVICES (INCLUDING BUT NOT LIMITED TO THE RESOURCES PAGE) AS LEGAL ADVICE, AND (B) ANY REPORTS YOU CREATE IN, OR REPORTS YOU GENERATE THROUGH, THE SERVICES MIGHT NOT BE ADMISSABLE AS EVIDENCE IN CONNECTION WITH A DISPUTE YOU MAY HAVE WITH A THIRD PARTY.
9. Notice of Claims of Copyright Infringement
Anita respects the intellectual property rights of others and requires users of the Services to do the same. In accordance with the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”) and other applicable law, Anita will respond expeditiously to claims of copyright infringement committed using the Services if such claims are reported to Anita’s Designated Copyright Agent identified in the notice below.
If you are a copyright owner, authorized to act on behalf of a copyright owner, or authorized to act under any exclusive right under copyright, please report any alleged copyright infringements taking place on or through the Services by completing the following DMCA Notice of Alleged Infringement and delivering the Notice to Anita’s Designated Copyright Agent. Upon receipt of a DMCA Notice of Alleged Infringement as described below, Anita will take whatever action, in its sole discretion, that Anita deems appropriate, which may include the removal of, or disabling of access to, the challenged material from the Services.
DMCA Notice of Alleged Infringement (“Notice”)
Deliver this Notice, with all items completed, to Anita’s Designated Copyright Agent:
Anita Project, Inc.
Attn: Copyright Agent
1300 Clay St #600
Oakland, CA 94612
Email: email@example.com (with the subject line “DMCA Notice of Alleged Infringement”)
In the event Anita, after receiving a proper DMCA Notice of Alleged Infringement, takes steps to remove or disable access to the challenged material, we will take reasonable steps to promptly notify the party who originally posted such challenged material to the Services (the “Posting Party”) that Anita has removed or disabled access to such challenged material. Provided the challenged material does not otherwise violate these Terms, the Posting Party may then dispute such DMCA Notice of Alleged Infringement by completing the following DMCA Counter-Notice and delivering the Counter-Notice to Anita’s Designated Copyright Agent. Upon receipt of a proper DMCA Counter-Notice, Anita will promptly provide the party who submitted the relevant DMCA Notice of Alleged Infringement (the “Reporting Party”) with a copy of such DMCA Counter-Notice and inform the Reporting Party that Anita will replace the removed material or cease disabling access to such material in 10 business days, and will thereafter replace the removed material and cease disabling access to such material not less than 10, nor more than 14, business days following receipt of such DMCA Counter-Notice, unless Anita’s Copyright Agent first receives notice from the Reporting Party that such Reporting Party has filed an action seeking a court order to restrain the Posting Party from engaging in infringing activity relating to the challenged material on the Services.
DMCA Counter-Notice (“Counter-Notice”)
Deliver this Counter-Notice, with all items completed, to Anita’s Designated Copyright Agent:
Anita Project, Inc.
Attn: Copyright Agent
1300 Clay St #600
Oakland, CA 94612
Email: firstname.lastname@example.org (with the subject line “DMCA Counter-Notice”)
Please note that pursuant to § 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing, or that the material or activity was removed or disabled by mistake may be subject to liability. Please also be advised that Anita enforces a policy of terminating the Accounts of, or banning, repeat infringers. A repeat infringer includes any user who has made two or more postings that Anita has removed or disabled access to pursuant to notices of infringement under these DMCA notice and takedown procedures.
Please further note that the above contact information is for intellectual property infringement notices only. DO NOT CONTACT THIS COPYRIGHT AGENT FOR OTHER INQUIRIES OR QUESTIONS.
10. Other Enforcement Actions
While we have no obligation to do so, Anita reserves the right to investigate and take appropriate action at our sole discretion against you if you violate these Terms, including without limitation: removing User Content (or portions thereof) from the Services; suspending your rights to use the Services, including but not limited to blocking IP addresses from which you may have downloaded one or more Reports; reporting you to law enforcement, regulatory authorities, or administrative bodies; and taking legal action against you.
11. Defending Users and Organizations
While we have no obligation to do so, we reserve the right, to the fullest extent permitted by applicable law, to take appropriate action to protect the anonymity of our users or of third party organizations against the enforcement of subpoenas or other information requests that seek our user’s electronic address or identifying information.
We welcome your feedback, comments, and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. You acknowledge and agree that: (i) Feedback does not contain confidential or proprietary information; (ii) Anita is not under any obligation of confidentiality, express or implied, with respect to any Feedback; (iii) Anita shall be entitled to use or disclose (or choose not to use or disclose) such Feedback for any purpose, in any way; (iv) Anita may already have under consideration or in development ideas similar to or the same as such Feedback; (v) your Feedback automatically becomes Anita’s property without any obligation to you; and (vi) you are not entitled to any accounting, compensation, or reimbursement of any kind from Anita with respect to Feedback under any circumstances. To be clear, Anita shall be entitled to utilize all Feedback in any way without restriction or obligation to you. Without limiting these rights, and to the extent you have an ownership right in or control any Feedback or any portion thereof, you hereby grant Anita a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable, and transferable license to use, copy, modify, create derivative works based upon, and otherwise exploit such Feedback or any portion thereof for any purpose.
13. Warranty Disclaimers
You acknowledge that a variety of actions we take or allow to occur may impair or prevent you from accessing or using the Services at certain times and/or in the same way, for limited periods or permanently. YOU ACKNOWLEDGE AND AGREE THAT NEITHER ANITA NOR ANY OF ANITA’S OFFICERS, DIRECTORS, EMPLOYEES, MANAGERS, AGENTS, OR REPRESENTATIVES (THE “RELATED PARTIES”) HAVE ANY RESPONSIBILITY OR LIABILITY AS A RESULT OF ANY SUCH ACTIONS OR RESULTS, INCLUDING, WITHOUT LIMITATION, THE DELETION OF YOUR USER CONTENT DATA, OR FAILURE TO MAKE IT AVAILABLE TO YOU. YOU ACKNOWLEDGE AND AGREE THAT NEITHER ANITA NOR ANY RELATED PARTIES SHALL BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION, SUSPENSION, OR DISCONTINUANCE OF ANY PART OF THE SERVICES.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ANITA AND THE RELATED PARTIES EXPLICITLY DISCLAIM ANY WARRANTIES WITH RESPECT TO ANY UPTIME OR UNINTERRUPTED ACCESS, THE AVAILABILITY, ACCURACY OR USEFULNESS OF THE CONTENT ON THE SERVICES, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT, ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE, ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THE SERVICES, AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE SERVICES. ANITA DOES NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, OR OPERATED FREE OF DELAYS IN TRANSMISSION, FAILURE IN PERFORMANCE, COMPUTER VIRUSES, INACCURACIES, ERRORS OR DEFECTS. YOU USE THE SERVICES AT YOUR OWN RISK. EACH OF ANITA AND THE RELATED PARTIES ALSO ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, BROWSING, OR USE OF THE SERVICES OR YOUR DOWNLOADING OF ANY CONTENT (INCLUDING BUT NOT LIMITED TO REPORTS) ON THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND VIRUS CHECKS (INCLUDING ANTI-VIRUS AND OTHER SECURITY CHECKS) TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR THE ACCURACY AND SECURITY OF DATA INPUT AND OUTPUT. ANITA SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE SERVICES. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICES IS TO TERMINATE YOUR ACCOUNT AND DISCONTINUE ALL USE OF THE SERVICES.
If you are a California resident, you hereby waive California Civil Code § 1542, which says: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY 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, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” This release includes the criminal acts of others. If you are not a California resident, you waive your rights under any statute or common law principle similar to California Civil Code § 1542 that governs your rights in the jurisdiction of your residence.
15. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS SET OUT BELOW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, ANY BREACH OF CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY OR LIABILITY ARISING UNDER ANY OTHER LEGAL OR EQUITABLE THEORY (WHETHER OR NOT ANY OF ANITA OR THE RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WILL ANY OF ANITA OR THE RELATED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, THAT ARISE OUT OF OR IN CONNECTION WITH (A) THE USE OF THE SERVICES OR INABILITY TO USE THE SERVICES, OR ANY USER CONTENT, RESOURCES, INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED OR ACCESSED THROUGH THE SERVICES; (B) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (C) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES; (D) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES AND, IN SUCH STATES OR JURISDICTIONS, ANITA AND THE RELATED PARTIES’ LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL ANY OF ANITA OR THE RELATED PARTIES BE LIABLE FOR ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY US OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY OF YOUR USER CONTENT). IN NO EVENT SHALL ANITA’S AND/OR THE RELATED PARTIES’ TOTAL, AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED, IN THE AGGREGATE (A) THE AMOUNT, IF ANY, PAID BY YOU TO US FOR YOUR USE OF THE SERVICES OR FOR ANY OF YOUR ACTIVITIES ON THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING YOUR CLAIM, OR (B) ONE HUNDRED U.S. DOLLARS ($100.00 USD), WHICHEVER IS GREATER.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN ANITA AND YOU.
THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
16. Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Anita agree that the Services and these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This section is intended to be interpreted broadly and governs any and all disputes between you and Anita, including but not limited to claims arising out of or relating to any aspect of the relationship between you and Anita, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to your use of the Services); and claims that may arise after the termination of these Terms or agreement to arbitrate. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Anita as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach Anita’s support department at firstname.lastname@example.org. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Anita’s support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
You will be required to pay $250 to initiate an arbitration against us. If the arbitrator finds the arbitration to be non-frivolous, Anita will pay all other fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States of America, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States of America, arbitration shall be initiated in the State of California, United States of America. You and Anita further agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND ANITA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you used to register for your account) written notice of your decision to opt out to email@example.com with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your first use of the Services or the effective date of the first set of Terms containing an Arbitration and Class Action Waiver section, whichever is later; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Anita also will not be bound by them.
Changes to This Section: Anita will provide thirty (30) days' notice of any changes to this section by posting on the Services, sending you a message or e-mail, or otherwise notifying you when you are logged into your Account. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Services.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your account or the Services.
17. Governing Law and Jurisdiction
By visiting or using the Services, you agree that the laws of the United States of America and the laws of the State of California, without regard to the principles of conflicts of laws, will govern your use of the Services, and these Terms and all matters relating to your access to and/or use of the Services, including all disputes between you and us and/or the Related Parties. For disputes not subject to the Arbitration and Class Action Waiver section above, or if any court or arbitrator determines that the Arbitration and Class Action Waiver section above is void or unenforceable for any reason or that an arbitration can proceed on a class basis, you and Anita irrevocably submit to the exclusive jurisdiction of, and venue in, the state and federal courts seated in San Francisco County, California, and the related appellate courts, in any related action or proceeding. You hereby waive any and all jurisdictional and venue defenses otherwise available. YOU AGREE THAT ANY COURT ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES, THESE TERMS AND ALL MATTERS RELATING TO YOUR ACCESS TO AND/OR USE OF THE SERVICES MUST BE COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE FOR SUCH ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
18. Special Notice for California Users
Under California Civil Code § 1789.3, users of the Services located in California are entitled to the following specific consumer rights notice:
- The name and address of Anita are: Anita Project, Inc., 1300 Clay St #600, Oakland, CA 94612, USA. Anita does not currently have a telephone number, but you may contact us by email at firstname.lastname@example.org.
- The procedures a consumer may follow in order to resolve a compliant regarding the Services are set forth in the Arbitration and Class Action Waiver section and Governing Law and Jurisdiction section above. To receive further information regarding the use of the Services please send us a message at email@example.com or contact us at our address set forth above.
- The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
These Terms remain in effect while you use the Services. We may suspend or terminate the Services or any portion thereof, for any or no reason, without notice to you. We will have no liability whatsoever to you for any termination or related deletion of your User Content. All provisions of these Terms shall survive termination or expiration of these Terms except those provisions granting you access to or use of the Services. For the avoidance of doubt, you agree that these Terms apply to your use of the Services and User Content posted on the Services at any time prior to the termination or expiration of these Terms.
20. Changes to these Terms
We may revise these Terms from time to time by posting an updated version on the Services. Except as otherwise provided in these Terms, the revised Terms will be effective immediately upon posting on the Services. You may always determine if the Terms have changed by checking the Effective Date at the top of these Terms. If we make a change that we believe materially reduces your rights or increases your responsibilities, we will notify you by means of a notice on the Services prior to the change becoming effective. We may provide notice of changes in other circumstances as well. Any such changes will not apply to any claim brought prior to the effective date of the revised Terms incorporating such changes. We encourage you to periodically review this page for the latest information on our Terms. Your continued use of the Services is subject to the most current effective version of these Terms. Except for changes made by us as described herein, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement expressly amending these Terms and bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
21. Third-Party Discovery
You agree to waive your right to file a pre-suit discovery proceeding seeking a user's identifying information from the Services. If you intend to propound discovery seeking a user's identifying information, you agree to do so pursuant to a valid California subpoena, properly issued in connection with an active lawsuit and properly served on our registered agent in California, which is California Registered Agent Inc. located at 1267 Willis St, Suite 200, Redding, CA 96001. You further agree that all such subpoenas and discovery proceedings arising from such subpoenas shall be issued from, brought, and resolved exclusively in the state courts located in San Francisco, California or the federal courts located in the Northern District of California, as appropriate, and you agree to submit to the personal jurisdiction of each of these courts for such discovery proceedings.
The Services may be subject to export control laws or regulations of the United States of America and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any United States technical data acquired from Anita, or any products utilizing such data, in violation of the export laws or regulations of the United States of America.
23. Electronic Communication
The communications between you and Anita may use electronic means, whether you use the Services or send us emails, or whether Anita posts notices on the Services or communicates with you via email or through the Services. For contractual purposes, you (a) consent to receive communications from Anita in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Anita provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hard copy in writing. The foregoing does not affect your non-waivable rights.
24. Entire Agreement
Except as specifically stated in any other agreement we may have with you, these Terms constitute the entire agreement between you and us regarding your use of the Services, and these Terms supersede all prior proposals, negotiations, agreements, and understandings concerning the subject matter of these Terms. You represent and warrant that no person has made any promise, representation, or warranty, whether express or implied, not contained herein to induce you to enter into this agreement. Any rights not expressly granted in these Terms are reserved to Anita. A printed version of these Terms and of any notice given in electronic form shall be admissible in any and all judicial or administrative proceedings based upon or relating to these Terms to the same extent as other business documents and records originally generated and maintained in printed form.
Anita’s failure to exercise or enforce any right or provision of the Terms shall not operate as a waiver of such right or provision. If any provision of the Terms is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
These Terms, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with Anita’s prior written consent, but may be assigned or transferred by Anita without restriction. Any attempted assignment by you shall violate these Terms and be void.
The section titles in the Terms are for convenience only and have no legal or contractual effect; as used in the Terms, the word “including” means “including but not limited to.”
25. Contact Us
If you have any questions regarding these Terms, please contact us at firstname.lastname@example.org or at the address listed below.
Anita Project, Inc.
Attn: Copyright Agent
1300 Clay St #600
Oakland, CA 94612