Effective March 15, 2020
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. DESCRIPTION OF WEBSITE; RESTRICTIONS
We provide you with access to the Website subject to the following terms and conditions. No login is required for your use of the Website, but you may need to provide certain identifying information if you wish to contact us. We reserve the right, in our sole and absolute discretion, to deny you access to the Website, or any portion of the Website, without notice and without reason.
2. COMMUNITY GUIDELINES
Our community, like any community, functions best when our users follow a few simple rules. By accessing the Website, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
You will comply with all applicable laws in your use of the Website and will not use the Website for any unlawful purpose;
You will not access or use the Website to collect any market research for a competing business;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not interfere with, or attempt to interrupt the proper operation of, the Website through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content (as defined below), data, files, or passwords related to the Website through hacking, password or data mining, or any other means;
You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Website;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Website;
You will not use any robot, spider, scraper, or other automated means to access the Website for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of 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;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
If you find something that violates our Community Guidelines, please let us know, and we’ll review it.
3. INTELLECTUAL PROPERTY
The Website contains material, such as videos, photographs, software, text, graphics, images, sound recordings, and other material provided by or on behalf of Whitlock (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
The trademarks, service marks, and logos of Whitlock (the “Whitlock Trademarks”) used and displayed on the Website are registered and unregistered trademarks or service marks of Whitlock. Other company, product, and service names located on the Website may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Whitlock Trademarks, the “Trademarks”). Nothing on the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Whitlock Trademarks inures to our benefit.
Elements of the Website are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
4. COMMUNICATIONS WITH AND SUBMISSIONS TO US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like, we shall be free to use any ratings data, ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
5. NO WARRANTIES; LIMITATION OF LIABILITY
YOU ACKNOWLEDGE THAT WHITLOCK DOES NOT REPRESENT OR WARRANT THAT THE CONTENT AND ANY OTHER DATA OR INFORMATION PROVIDED THROUGH THE WEBSITE WILL BE ACCURATE OR COMPLETE.
YOU ALSO ACKNOWLEDGE THAT THE WEBSITE MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURES. CONSEQUENTLY, THE WEBSITE AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE WEBSITE OR CONTENT WILL OPERATE ERROR-FREE OR THAT THE WEBSITE, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE WEBSITE OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE WEBSITE OR THE CONTENT SHALL NOT EXCEED FIFTY U.S. DOLLARS ($50).
6. EXTERNAL SITES
The Website may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Content or the Website; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
8. COMPLIANCE WITH APPLICABLE LAWS
Whitlock is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Website or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
9. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Website, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Website at any time without prior notice or liability. Sections 2 through 15 shall survive the termination of this Agreement.
10. CONTROLLING LAW
This Agreement and any action related thereto will be governed by the laws of the State of Colorado without regard to its conflict of laws provisions.
11. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement, the Content, or the Website (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 13 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
12. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
13. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Colorado for purposes of any such action by us.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
15. PRIVACY TERMS
The Information We Collect and/or Receive
In the course of operating the Website and/or interacting with you, Whitlock will collect (and/or receive) the following types of information. You authorize us to collect and/or receive such information.
1. Personal Information
We do not collect any personal information from you, unless you provide such information voluntarily, such as by sending us an e-mail. Such information may include, without limitation, your first and last name, e-mail address, or other contact information. All information we collect and/or receive under this section is collectively called “Personal Information.”
2. Other Information.
In addition to the Personal Information, we may automatically collect or receive additional information regarding you and your use of our Website, your interactions with us and our advertising, as well as information regarding your computer or other devices used to access our Website (collectively, the “Other Information”). Such Other Information may include:
a. From Your Activity
IP address, which may consist of a static or dynamic IP address and will sometimes point to a specific identifiable computer or device;
Browser type and language;
Referring and exit pages and URLs;
Date and time;
Details regarding your activity on the Website, such as amount of time spent viewing pages and other performance and usage data.
b. About Your Device
Type of device;
Advertising Identifier (“IDFA” or “AdID”);
Operating system and version (e.g., iOS, Android or Windows);
Network type (WiFi, 3G, 4G, LTE).
c. From Cookies
personalize your experience;
analyze which portions of the Website are visited or used most frequently; and
measure and optimize advertising and promotional effectiveness.
If you do not want Whitlock to deploy cookies in your browser, you can opt out by setting your browser to reject cookies or to notify you when a website tries to put a cookie in your browser software. If you choose to disable cookies in your browser, you can still use the Website, although your ability to use some of the features may be affected.
d. Third-Party Analytics
For more information on these third parties, including how to opt out from certain data collection, please visit the sites below. Please be advised that if you opt out of any service, you may not be able to use the full functionality of the Website.
For Google Analytics, please visit https://www.google.com/analytics.
e. From You.
Additional information that you voluntarily provide to us (either directly or via our social media pages) that does not identify you personally.
The Information Collected by or Through Third-Party Advertising Companies
Neither we nor any third party acting on our behalf employs behavioral advertising or retargeting in connection with users whom we know to be under 13 years old.
How the Information is Used and Shared
We use the Personal Information and the Other Information (collectively, the “Information”) to provide our services; to maintain and improve our Website and services to you; to solicit your feedback; and to inform you about our products and services.
We may also use and/or share Information as described below.
Whitlock will access, use, and share the Information as required to provide services or support to you in connection with your use of the Website.
We may employ other companies and individuals to perform functions on our behalf. Examples may include providing technical assistance, customer service, and marketing assistance. These other companies will have access to the Information only as necessary to perform their functions and to the extent permitted by law.
In an ongoing effort to better understand our users, and our products and services, we may analyze Information in aggregate form in order to operate, maintain, manage, and improve the Website and/or our products and services. This aggregate information does not identify you personally. We may share this aggregate data with our affiliates, agents, and business partners. We may also disclose aggregated user statistics in order to describe our products and services to current and prospective business partners and to other third parties for other lawful purposes.
We may share some or all of your Information with any of our parent companies, subsidiaries, joint ventures, or other companies under common control with us.
As we develop our businesses, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, sale of assets, dissolution, or similar event, the Information may be part of the transferred assets.
To the extent permitted by law, we may also disclose the Information: (i) when required by law, court order, or other government or law enforcement authority or regulatory agency; or (ii) whenever we believe that disclosing such Information is necessary or advisable, for example, to protect the rights, property, or safety of Whitlock or others.
How to Opt Out of Third-Party Interest-Based Advertising
Additionally, users of mobile devices can follow the below instructions:
For Android devices with OS 2.2 and up and Google Play Services version 4.0 and up:
Open your Google Settings app > Ads > Enable “Opt out of interest-based advertising.”
iOS 7 or Higher
Go to your Settings > Select Privacy > Select Advertising > Enable the “Limit Ad Tracking” setting.
Go to your Settings >Select General > Select About > Select Advertising > Enable the “Limit Ads Tracking” setting.
Accessing and Modifying Information and Communication Preferences
If you have provided us any Personal Information, you may access, remove, review, and/or make changes to the same by contacting us as set forth below. In addition, you may manage your receipt of marketing and non-transactional communications by clicking on the “unsubscribe” link located on the bottom of any Whitlock marketing e-mail. We will use commercially reasonable efforts to process such requests in a timely manner. You should be aware, however, that it is not always possible to completely remove or modify information in our subscription databases. You cannot opt out of receiving transactional e-mails related to the Website (e.g., requests for support).
How We Protect Your Information
We take commercially reasonable steps to protect the Information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. Please understand, however, that no security system is impenetrable. We cannot guarantee the security of our databases or the databases of the third parties with which we may share such Information, nor can we guarantee that the Information you supply will not be intercepted while being transmitted over the Internet. In particular, e-mail sent to us may not be secure, and you should therefore take special care in deciding what information you send to us via e-mail.
Important Notices to Non-U.S. Residents
The Website and its servers are operated in the United States and elsewhere. Please be aware that your Information, including your Personal Information, may be transferred to, processed, maintained, and used on computers, servers, and systems located outside of your state, province, country, or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction. If you are located outside the United States and choose to use the Website, you hereby irrevocably and unconditionally consent to such transfer, processing, and use in the United States and elsewhere.
The Website is not directed to children under the age of 13. Whitlock adheres to the Children’s Online Privacy Protection Act (“COPPA”) and will not knowingly collect Personal Information from any child under the age of 13. We ask that minors (under the age of 13) not submit any Personal Information to us. If you are under the age of 13, you may not use the Website.
If a child under the age of 13 has provided us with Personal Information, a parent or guardian of that child may contact us and request that such information be deleted from our records.
Whitlock does not monitor, recognize, or honor any opt-out or do not track mechanisms, including general web browser “Do Not Track” settings and/or signals. For instructions on how to opt out of third-party interest-based advertising, please see “How to Opt Out of Third-Party Interest-Based Advertising” above.
How to Contact Us