EarthShift SYSTEMS TERMS OF SERVICE
Effective November 17, 2017
( Last Updated March 9, 2018 )
Overview
These EarthShift Terms of Service (the “Service Terms”) are agreed to by Star Building Group Systems (“Star Building ”, “we” or “us”) and the visitor or community leader (“User”), using the EarthShift network (the “EarthShift Network”) for disaster education and preparation. By using the EarthShift Network, the User agrees to abide by these Service Terms.
From time to time, we may modify or update these Service Terms as described in the section entitled “Changes to the EarthShift Network or these Service Terms.” If you use the EarthShift Network after any such change, you accept these Service Terms as modified.
1. Definitions.
“Affiliate” – any legal entity that owns, is owned by, or is commonly owned with a party, where “own” means having more than 50% ownership or the right to direct the management of the entity.
“Manager(s)” – refers to a community leader, which uses the EarthShift Network and its management tools. Managers have Manager Accounts, which are governed by these Terms of Service, our Privacy Policy and to EarthShift Systems Service Agreements.
“EarthShift Systems” – also referred to as EarthShift, is a member of the Star Building Group.
“EarthShift Marketplace” – refers to a community marketplace where EarthShift Network Users can buy and sell goods and services offered by fellow EarthShift Network Users.
“Resident(s)” – refers to residents of buildings or communities who utilize the EarthShift Network and are users of the EarthShift Network. Residents have Resident Accounts which are governed by this Terms of Service and our Privacy Policy.
“Service Agreement” – Any service order document generated by Star Building Group and executed by a community leader or manager and Star Building Group that incorporates by reference these Service Terms, including any attachments or addenda to it.
“Star Building Group” – the company providing the EarthShift Systems and operating our Services, which is the Star Building Group, LLC.
“EarthShift Network” – refers to the EarthShift Systems network.
“User” – a general term to refer to all users of the EarthShift including Managers, Residents, Visitors and Community Leaders.
EarthShift is a Life Style
2. Welcome. Welcome to the EarthShift Network. The EarthShift Network is a management tool for Community Leaders and a private social network and resource for Managers and Residents. It’s a way for everyone to come together, build community and make your neighborhood a better place, a home. Our core values are: Community, Sharing and Privacy. Everything follows from these principles: streamline community management, help others and get help when you need it, share and trade things and services, discuss relevant issues, make friends, and organize events in a safe, private and welcoming environment.
To access the management dashboard and utilize management tools, connect with other residents, use and receive certain services provided by EarthShift, may require Managers and Residents to register for and maintain a EarthShift Network account (“Account”).
The EarthShift Network offers two types of Accounts, an Account for Managers (“Manager Account”) and another for Residents (“Resident Account”). These Service Terms describe your rights and obligations in connection with your Account and use of the EarthShift Network and along with the EarthShift guidelines, which outline our expectations regarding appropriate use of the EarthShift Network (“EarthShift Guidelines”), apply to both Managers and Residents of the EarthShift Network, except where specified that a particular Service Term only applies to a Manager Account.
If you are a Manager, these Service Terms, our Privacy Policy and the EarthShift Guidelines govern the Services available through the EarthShift Network. The terms of your use of the EarthShift Network and payment for such Services are subject to the Service Agreement and any attachments or addenda to it and are part of this agreement.
If you are a Resident, a majority of these Service Terms (with the exception of some Service Terms that state they apply only to Manager Accounts) our Privacy Policy and the EarthShift Guidelines govern the Services available through the EarthShift Network.
We strive for every User of the EarthShift Network to have a positive experience and take the principles set out in these Service Terms and the EarthShift Guidelines seriously so please take a moment to review these Service Terms and EarthShift Guidelines as they not only set rules and expectations and what you can expect from us but affect your legal rights, both as a visitor and as a registered User of the EarthShift Network.
By clicking “I accept” or by accessing the EarthShift Network directly or via a third party server or service, (“EarthShift” or our “Services”), you are agreeing to these Service Terms, so please take a moment to read this legally binding agreement.
3. Who We Are. EarthShift was founded and is operated by a group of individuals who value earthquake and disaster preparation as a life style and a way to connect to others in a community. The purpose of the EarthShift Network is to provide an easy way for Residents to connect and build communities, and for Managers to streamline their work organizing and leading their community in earthquake and disaster preparation. We hope you enjoy the experience. Who we are for purposes of these Service Terms is Star Building Group, LLC.
4. Who You Are. All references to “you,” “your” and similar words in these Service Terms refer to any Manager, Resident registering for a Manager or Resident Account on the EarthShift Network or a visitor of the EarthShift Network and therefore agreeing to be bound by these Service Terms.
5. Additional Policies, Terms And Services. You acknowledge that your use of the EarthShift Network is also subject to our Privacy Policy and if you are a Manager you are also bound by the terms of your Service Agreement, which explains our service options and payment terms. Our full Privacy Policy explains how we handle User data collected and generated in the course of visiting or using the EarthShift Network. Please read it, as it forms part of this agreement. Occasionally, additional features, tools or services may be made available to you through the EarthShift Network. Additional terms may apply to such additional services, and to the extent you are receiving any additional services, the applicable additional terms are incorporated into these
Service Terms by this agreement.
6. Effective Date; Termination. These Service Terms shall become effective for visitors, Managers and Residents on date you register for a Resident Account or Manager Account. Manager Accounts shall become effective as of the date of execution of the Service Agreement and in the occasion that there is no Service Agreement, upon registration for a Manager Account. Manager Accounts shall continue for the period specified in the Service Agreement or, if not so specified, for automatically recurring monthly terms until terminated (the “Term”). Either Manager or EarthShift may terminate the Service Agreement and these Service Terms at any time upon 30 days’ written notice. If a Manager terminates, no prepaid fees will be refunded.
7. Payment Terms. EarthShift shall invoice Manager Accounts monthly in advance for use of the EarthShift Network. All amounts set forth on the invoice shall be due within 30 days after Manager’s receipt of the invoice. Manager is responsible for paying all local, state, federal or foreign taxes, levies or duties of any nature.
8. Late Payments. If Manager fails to pay any fees within 30 days after the date due, EarthShift may levy late charges of the lesser of one percent (1%) per month or the maximum allowable under applicable law. In addition, failure of Manager to fully pay any undisputed fees within 45 days after the applicable due date shall be deemed a material breach of this agreement, justifying suspension of Manager’s access to the EarthShift Network. Any such suspension does not relieve Manager from paying past due fees plus interest. In the event of collection enforcement, Manager shall be liable for any costs associated with such collection, including legal costs, attorneys’ fees, court costs and collection agency fees.
9. Termination for Cause. Either Manager or EarthShift may terminate the Service Agreement and these Service Terms immediately in the event that: (a) the other party materially breaches any of its representations, warranties or obligations under the Service Agreement and these Service Terms, and such breach is not cured within 30 days after receipt of notice specifying the breach; or (b) the other party (i) institutes bankruptcy or similar proceedings, or files for a stay of proceedings or similar relief, (ii) has bankruptcy or similar proceedings instituted against it, and such proceedings are not stayed or dismissed within 30 days; (iii) makes an assignment of property or assets for the benefit of its creditors, or (iv) becomes insolvent, or has a liquidator, receiver, manager or administrative receiver appointed. Upon any such termination of this agreement under this Section 8, Manager shall pay all unpaid and outstanding fees through the effective date of termination. If Manager terminates for cause under this Section 8, EarthShift will refund a prorated portion of any fees paid in advance.
10. Third Party Services. As used in these Service Terms, neither EarthShift nor EarthShift Network are involved in or liable for, the provision of products or services by third parties (including other Users of the EarthShiftNetwork) (“Third Party Services”) that you may encounter through your use of the EarthShift Network or that you may elect to purchase in connection with your ownership, management and/or residency in a building that utilizes the EarthShift Network. Third Party Services are provided solely by the applicable third party (“Third Party Service Providers”) and pursuant to separate arrangements between you and the applicable Third Party Service Providers.
11. Changes To The EarthShift Network Or These Service Terms. The availability of the EarthShift Network and the content and services you access or use through the EarthShift Network are subject to change from time to time in our sole discretion, and we may change, suspend, or discontinue all or part of the EarthShift Network at any time in our sole discretion. From time to time, we may also make modifications, deletions or additions to these Service Terms. Your use of the EarthShift Network is subject to the Service Terms in effect at the time of such use. We may also impose limits on or restrict your access to the EarthShift Network without notice or liability. We will provide you with notice of changes to these Service Terms or to the Services we provide that apply to you by posting a notice on the EarthShift Network. Most changes will be effective immediately upon notice. It is also your responsibility to check these Service Terms periodically for changes. Your continued use of the EarthShift Network following notification of any changes to these Service Terms constitutes acceptance of those changes, which will apply to your continued use of the EarthShift Network going forward. If you don’t agree to the changes, you may terminate your User Account, but please note that you may not be able to access many of our Services without a EarthShift Network User Account.
Your EarthShift Network Account
12. Eligibility. We want all Resident Users to join the EarthShift Network, however, if you are under 13 years old, please do not use our Services or provide any data to us. The EarthShift Network is available to individuals who are at least 13 years old and at least 18 years old to use any services that require payment by you (as applicable, the “Eligibility Age”). No one under the Eligibility Age may access or use the EarthShift Network or provide any personal information through the EarthShift Network (e.g., name, address, telephone number or email address). Please be certain you qualify before accessing or using the EarthShift Network in any way. Convicted sex offenders, including registered sex offenders are not eligible for EarthShift Network Accounts. As determined by us in our discretion, we may deny any Account registrations we think would harm other EarthShift Network Users or the community. By registering for an Account, you agree to provide us with accurate and complete information about yourself. By using or accessing the Member Network in any way, you represent and warrant that you meet the requirements in these Service Terms or as otherwise specified by us from time to time, including the Eligibility Age.
13. Account Information. It is not OK to submit inaccurate Account information. Providing false registration information violates our EarthShift Guidelines and could constitute a crime. Upon registering for an Account, you may elect to remain anonymous or have your name and registration information visible to other Users.
14. Availability. Subject to the terms and conditions of these Network Terms, EarthShift shall use its commercially reasonable efforts to make the EarthShift Network available for use by all Users 24-hours a day, 7 days a week throughout the Term. You acknowledge that from time to time the EarthShift Network may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades by EarthShift or third party service providers (“Scheduled Downtime”); malfunctions and errors; and causes beyond the control of EarthShift or which are not reasonably foreseeable by EarthShift, including the interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). EarthShift shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the EarthShift Network in connection with either Downtime or Scheduled Downtime. In the event that the EarthShift Network has an uptime availability of 95% or less, then upon written request by User, EarthShift will refund a percentage of Manager’s monthly fee equal to the Downtime percentage (e.g., if the uptime availability in a month is 90%, Manager will be entitled to receive a 10% refund on the following month’s payment). Such refund will be Customer’s sole remedy for a breach of this section 13.
15. Use by Affiliates. If Manager wishes to permit its Affiliates to use the EarthShift Network, and EarthShift approves such use, Manager and such Affiliate shall execute EarthShift Service Agreement. Manager shall remain solely liable for such Affiliates’ acts, omissions and usage of the EarthShift Network.
EarthShift Network Content
16. Content. The information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, links, graphics, and interactive features generated, provided, or otherwise made accessible on or through the EarthShift (collectively, “Content”) are contributed by various parts of the EarthShift Network community, which may include Star Building Group, LLC, our partners, various third parties, and individuals employed by or otherwise affiliated with companies utilizing the EarthShift Network. The Content and the EarthShift Network are protected by U.S. and international copyright laws. We and our licensors retain all proprietary rights in the EarthShift Network and the Content made available on or through the EarthShift Network, except that our Users own their submitted User Content (defined below), and except as expressly set forth in these Service Terms, no rights are granted to any Content. As between us, our Content includes the name STAR BUILDING GROUP, LLC, EARTHSHIFT and any pictures or illustrations of buildings that provide our EarthShift Network to Users, which may not be used for advertising, publicity or any other purpose without our prior consent.
17. Use Of EarthShift Content. In consideration of a User’s performance of the obligations under these Service Terms, including Manager’s payment obligations, we grant each User of the EarthShift Network a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the EarthShift Network.
18. Restrictions On Use. Please note that the license grant in the preceding section does not allow any User to download contact or other information about other Users of the EarthShift Network made available through the EarthShift Network, which is strictly prohibited unless authorized by the relevant User. Use, download, display, reproduction, modification, distribution or storage of any Content for purposes other than interaction with other Users of the EarthShift Network, in accordance with these Service Terms and our EarthShift Guidelines is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any EarthShift or third party right or our EarthShift Guidelines.
19. Availability Of Content. We do not guarantee that any Content will be made available on the EarthShift Network. We reserve the right, but do not have any obligation to, (a) monitor, remove, edit or modify any Content, including User Content (defined below), in our sole discretion, at any time, without notice to you and for any reason or for no reason at all or (b) remove or block any Content, including User Content, from the EarthShift Network.
20. Intellectual Property Of EarthShift. You do not acquire any ownership rights in or to any of our intellectual property by accessing or using the EarthShift Network. You may not take, copy or use for any purpose (a) the name “EarthShift,” “EarthShift Systems,” “EarthShift Network,” “EarthShift Network Systems,” or any of our other business names, trademarks, service marks, logos, trade dress, other identifiers or other intellectual property; (b) any modified, altered or similar versions of the same or (c) any pictures or illustrations of any portion of any property utilizing the EarthShift Network, including any properties on which EarthShift provides any Services, for any purpose, including any competitive purposes, without our prior consent. You may not use any Content, data or other information you receive or access in connection with the EarthShift Network to solicit any of our Users, customers or partners, or other individuals or entities you encounter in connection with your use of the EarthShift Network, in a manner that could be considered competitive or harmful to EarthShift or the community as determined by us in our discretion.
User Content
21. EarthShift’s Use Of User Content. By contributing, posting, submitting, or otherwise making any Content available to or through the EarthShift Network (such content “User Content”), you hereby grant to EarthShift a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable (through multiple tiers) and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise utilize in any manner the User Content for commercial and non-commercial purposes, and to allow others to do so, in any medium now known or hereinafter developed, without any duty to notify you or provide attribution or compensation to you. You acknowledge and agree that User Content that you contribute to the EarthShift Network may be accessible by EarthShift and other Users, including after the termination of your Account, and that once you contribute User Content to the EarthShift Network, you may not be able to remove it. We reserve the right to store, archive, repost, or otherwise make available any User Content contributed to the EarthShift Network at any time after such User Content is contributed.
22. Legal Compliance; Contributing Content. You represent and warrant that you have the necessary rights in your User Content to grant the rights required by these Service Terms. You understand that you are legally responsible for all of your User Content under all applicable U.S. and international laws and represent and warrant that your User Content and use of the EarthShift Network will not violate any law or the rights of any person or entity. In some limited circumstances, authorities may seek to apply the laws, rules or regulations of other countries to you, including local laws where you live or view or contribute Content, and we cannot offer any protection, guarantee, immunity or indemnification in such situations. These Service Terms are void where prohibited by law, and the right to access the EarthShift Network is revoked in such jurisdictions.
Take Down Provisions.
In the event that EarthShift receives notification that User Content violates the rights of another user, person, or third party entity, EarthShift will remove the identified User Content from the EarthShift Network as soon as is reasonably possible. EarthShift will notify the User who posted the identified User Content that the content has been removed and will accept a response from the User as to why the identified User Content does not believe that the rights of the notifying party are not violated. Note that should EarthShift determine, at its sole discretion, that the User is a “Repeat Offender”, EarthShift may terminate the User’s account, and may remove all of the User’s posted content from the EarthShift Network.
23. Public Content. If you post User Content to public portions of the EarthShift Network, or portions of the EarthShift Network that are viewable by all other Users, you acknowledge and agree that such User Content (“Public User Content”) will be accessible by other Users. You grant each EarthShift Network User a non-exclusive, perpetual license to access your Public User Content and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such Public User Content solely in connection with their use of the EarthShift Network in accordance with these Service Terms and any other policies or guidelines made available by EarthShift.
24. User Content Rights. The foregoing license grants do not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content (as long as they do not conflict with the license grants set forth in these Service Terms) unless you otherwise agree in writing. Similarly, except as expressly authorized in these Service Terms or by the relevant individual or entity to which the Content belongs, you may not take, copy, modify, publish, transmit, distribute, perform, display, or sell information belonging to other individuals or entities.
25. Restrictions. In short, please don’t post User Content that (a) is inappropriate, vulgar, pornographic, criminal or the like; (b) belongs to someone else or (c) would disrupt the privacy, professional work or private living environment of other EarthShift Users, as decided by EarthShift in our discretion. To be more specific, you promise that you won’t contribute any User Content or take any action that: (d) infringes or violates the intellectual property rights or proprietary rights of any third party; (e) reveals any restricted, confidential or proprietary information of others, including any other party’s private information such as another individual’s credit card number, social security number or driver’s license number, unless you own the information or have the owner’s permission to post it; (f) violates any law, statute, ordinance or regulation; (g) is prohibited by any employment, contractual or other legal obligation or relationship; (h) promotes or incites racism, sexism, bigotry, hatred or physical harm of any kind against any group or individual; (i) bullies or advocates the stalking of or the intimidation of another person or is otherwise harmful, fraudulent, inaccurate, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (j) harms minors in any way; (k) violates the privacy of any individual or entity; (l) involves spamming, the sending of mass solicitations, or any other commercial and/or sale activities without our prior written consent; (m) impersonates any EarthShift Network User, person or entity, including without limitation any employee or representative of EarthShift, or implies that any statements you make are endorsed by us, or a EarthShift User without the applicable party’s consent, is connected with any activity or business that is illegal, fraudulent or otherwise inappropriate or objectionable; (n) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program; (o) uses any manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the EarthShift Network; (p) collects email addresses or other contact information of Users without their prior consent; or (q) “frames” or “mirrors” any portion of the EarthShift Network or attempts to decompile, reverse engineer, or otherwise attempt to obtain the source code of the EarthShift Network.
Content Is Information
26. Please Use Common Sense. We believe your User Content helps our community grow, however, all Content on the EarthShift Network is for general informational purposes only. You may encounter material that you find erroneous, misleading, mislabeled, offensive or otherwise objectionable. Please use common sense and proper judgment when using the EarthShift Network or any Content or information found on or through the EarthShift Network. We do not endorse any opinions expressed via the EarthShift Network, and we do not represent or guarantee the truthfulness, accuracy, or reliability of any Content. We have no obligation to pre-screen or monitor any User Content. We cannot guarantee that any User Content will be accurate or otherwise in compliance with these Service Terms. We may, in our discretion and without notice, edit, delete or move any of your content or any information transmitted to or from your Account. We may do this at any time and for any reason. If we provide a notice indicating we have reviewed any User Content, it does not mean that we have verified the information in the User Content.
27. Advertisements. In using the EarthShift Network, you may encounter advertisements from Third Party businesses, service providers and our other business partners, which may be targeted to you based on the location of the building you own, manage or your residency and certain information you provide to us. The types and extent of advertising are subject to change. In consideration for us granting you access to and use of the EarthShift Network, you agree that we, such Third Party local businesses, service providers and other business partners may provide you with such advertising from time to time.
28. Endorsements and Testimonials. From time to time, we may also publish testimonials by EarthShift Network Users related to their experiences with various EarthShift Services or Third Party Services. Names, locations, dates and other information may be changed to protect the privacy of the Users involved. These testimonials represent individual results and are not verified by us and are the subjective opinions of the Users providing such testimonials. Any testimonials or endorsements of any type, format or nature posted by Users may not be verified and we make no warranty or representation as to their accuracy. We do not claim that any testimonials or endorsements of any type are typical results that other Users will generally achieve.
EarthShift Services
29. Management Dashboard. The management dashboard offers management tools for Managers, accessible by Managers upon registration for a Manager Account on the EarthShift Network and completion of the Service Account.
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31. EarthShift Marketplace. The EarthShift Marketplace, where available, is a community marketplace where EarthShift Network Users can buy and sell goods and services offered by fellow EarthShift Network Users. We encourage all Users of the EarthShift Marketplace to deal fairly and openly with other EarthShift Network Users and residents in accordance with our EarthShift Guidelines. After making contact with EarthShift Network Users on the EarthShift Marketplace we encourage Users to deal face-to-face in order to come to the best agreement and avoid any potential problems or scams. EarthShift System makes no promises as to the EarthShift Marketplace, its accuracy, availability, timeliness, propriety, security or reliability of goods or services offered by other EarthShift Network Users. Your access and use of the EarthShift Marketplace are at your own risk and all goods and services listed on the EarthShift Marketplace are provided “AS IS” and “AS AVAILABLE.”
32. Interacting With Other Users/Residents. You agree to use EarthShift Network’s User-to-User transactional features EarthShift Marketplace, for their intended purpose only, and you acknowledge that your Account is for your personal use only. Our EarthShift Guidelines outline our expectations regarding appropriate use of these EarthShift Network Services. Please be fair and neighborly in your comments, and do not post any personal information (e.g., address, mobile number, or photos) that isn’t already part of another EarthShift Network User’s profile. In the event that a User discloses his or her personal information to you, pursuant to the EarthShift Guidelines please respect his or her privacy and do not disclose or disseminate any private User information without the User’s express consent. Use of EarthShift or any similar feature does not make us an employer, placement agency, representative, or agent of/for you or any other resident. You and the other EarthShift Network User, rather than EarthShift are responsible for complying with the laws, such as tax or employment laws, applicable to transactions between you.
Account Termination
33. About Termination. An EarthShift Network Account is required to access some of the EarthShift Services, so you may not be able to reserve meeting rooms, attend sponsored events, receive notifications if you terminate your Resident Account. In the event that you do want to terminate your EarthShift Network Account, you acknowledge and agree that you are giving up your ability to access and use any Services requiring a EarthShift Network Account. You can terminate your EarthShift Network Account by deactivating your EarthShift Network Account through the EarthShift Network or contacting an EarthShift Account Manager at the address provided at the end of this agreement.
34. Termination By EarthShift. EarthShift is a concept built around community. Our EarthShift Guidelines outline our expectations regarding appropriate use of the EarthShift Network. If you fail to comply, or if we suspect that you have failed to comply with any of the provisions of these Service Terms, EarthShift Guidelines, or any other EarthShift policies, rules or guidelines, or at any other time when we in our discretion see fit to do so, we may, at our sole discretion, restrict your access to your Account and the EarthShift Network and/or terminate your Account with immediate effect and possibly without prior notice to you.
35. Effect Of Termination. Please note that unless we decide to remove your previously contributed User Content, your User Content and the information from the profile associated with your Account, shall publicly appear attributed to “Anonymous,” after the termination of your Account.
Disclaimer Of Warranties; Limitations Of Liability
36. Limitations of Liability. For the avoidance of doubt, nothing in these Service Terms will exclude or limit our liability for: (a) death or personal injury caused by our negligence; (b) fraud or fraudulent misrepresentation or (c) any breach of any implied terms which cannot lawfully be excluded.
37. Waiver And Release Of Claims. TheEarthShift Network is provided “AS IS.” To the extent permitted by law, EarthShift Systems and our affiliates, parents, and successors and each of our and their employees, assignees, officers, agents and directors (collectively, the “Star Building Group Parties”) (a) disclaim all warranties and terms, express or implied, with respect to the EarthShift Network, including warranties, terms or representations as to the availability, operation, performance and/or use of the EarthShift Network, or any other Services including EarthShift Marketplace, Content or materials on or accessed via the EarthShift Network, including any warranties or terms of merchantability, fitness for a particular purpose, title, non-infringement and any implied warranties, terms or indemnification arising from course of dealing, course of performance or usage in trade and (b) will not be liable for any indirect, special, incidental, exemplary, punitive or consequential damages, business interruption or loss of profits, or damages for lost time, goodwill or data, even if advised of the possibility of such damages and regardless of the form of action, whether in contract, tort, strict liability or otherwise. To the extent permitted by law, you, on your own behalf and on behalf of your agents, guests and invitees, (i) waive any and all claims, liabilities, costs, damages, expenses and rights, including reasonable attorneys’ fees (“Claims”) against the Star Building Group Parties resulting from injury or damage to, or destruction, theft, or loss of, any property, person or pet and (ii) release the Star Building Group Parties from any such Claims. You shall and hereby do waive California Civil Code Section 1542 or any other similar law of any jurisdiction, which says in substance: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
38. No Liability For Actions Of Others. We do not control and are not responsible for the actions of other individuals or Users you encounter through the EarthShift Network. You should be aware that other EarthShift Network Users or third parties may not be who they claim to be. We do not perform background checks on our EarthShift Network Users nor do we guarantee that our EarthShift Network Users’ profiles or Account information are accurate. We do not endorse, support or verify the facts, opinions or recommendations of our EarthShift Network Users. If a dispute arises between Users, we shall have no responsibility or obligation to participate, mediate or indemnify any party.
39. No Liability For Third Party Services Or Products. The EarthShift Network may provide you with access to products, Services or advertisements provided by Third Party Service Providers or our other business partners. We are not responsible for the content of these advertisements or any links, products, services or other materials relating to any products, services, advertisements or other materials provided by Third Party Service Providers. In no event will we be liable, directly or indirectly, to anyone for any damage or loss relating to any use of or reliance on any advertisement on the EarthShift Network or any products, services or other materials relating to any advertisement. You agree that our making available access to or discounts for any Third Party Services does not constitute provision of such Third Party Services by us, and you will look solely to the applicable Third Party Service Provider for provision of the applicable Third Party Service and for compensation for any claims, damages, liabilities or losses you may incur in connection with such Third Party Service.
Manager Indemnity
40. Manager agrees to indemnify and hold EarthShift, its vendors, and their respective officers, directors, members, employees, representatives and agents (the “Indemnified Parties”) harmless from and against any claim, loss, damage, liability, cost and expense (including reasonable attorneys’ fees) (“Claims”) incurred by an Indemnified Party asserted against any of them by third parties, including Residents, which arises out of or is connected with (a) Resident or Manager’s use of the EarthShift Network and/or (b) User Content provided for use in connection with the EarthShift Network.
41. The indemnification obligations of Manager hereunder are dependent upon EarthShift giving Manager prompt written notice of such claim.
EarthShift Indemnity
42. EarthShift agrees to defend and indemnify User against any third party claim that User’s use of the EarthShift Network in accordance with these Service Terms (but excluding any User Content) directly violates, infringes, or misappropriates any United States patent issued as of the date of the corresponding Service Agreement, or any copyright or trademark (an “Infringement Claim”). Without prejudice to such indemnity obligations, EarthShift may, at its sole discretion, and option: (a) obtain the right of continued use of such service or the EarthShift Network being the subject matter of the Infringement Claim; (b) replace or modify same to avoid such Infringement Claim; or (c) terminate these Service Terms by notifying Manager in writing and refunding to Manager any prepaid fees pursuant to the valid Service Agreement.
43. EarthShift will not defend or indemnify Manager or Resident if any Infringement Claim (a) is asserted by an Affiliate of Manager, (b) results from use of the EarthShift Network in combination with any non-EarthShift service or product to the extent that such Infringement Claim would not have been caused but for such combination, or (c) is based in whole or in part upon any User Content, to the extent that such Infringement Claim would not have been brought but for such User Content.
44. The indemnification obligations of EarthShift under these Service Terms are dependent upon User: (a) giving EarthShift prompt written notice of such Infringement Claim, (b) permitting EarthShift to defend or settle the Infringement Claim, (c) not at any time admitting liability in respect of the whole or any part of the Infringement Claim or agreeing to settle or dispose of the Infringement Claim, and (d) providing all reasonable assistance to EarthShift in defending or settling the Infringement Claim.
45. These section 40-43 states the entire liability of EarthShift and User’s sole and exclusive remedies for any Infringement Claim.
46. You Agree To Cooperate With Us. From time to time, we may investigate any actual, alleged or potential violations of these Service Terms. You agree to cooperate fully in any of these inquiries. You waive any and all rights against the Star Building Group Parties, and agree to hold them harmless in connection with any claims relating to any action taken by us as part of our investigation.
47. Force Majeure. EarthShift shall be excused from performance hereunder for the period of time and to the extent that EarthShift is prevented from providing the EarthShift Network, in whole or in part, as a result of delays caused by User, an act of God, war, terrorism, civil disturbance, court order, labor dispute, third party non-performance or other cause beyond EarthShift’s reasonable control, including failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment and such non-performance due to the force majeure event alone shall not be a default or a ground for termination.
Governing Law and Arbitration
48. Governing Law. These Service Terms and any matters directly and exclusively related to the EarthShift Network shall be governed by and construed under the applicable laws of the State of California, U.S.A. and the United States without regard to conflicts of laws provisions.
49. Arbitration. Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to these Terms, or at law, or the breach, termination or invalidity of these Terms, that cannot be settled amicably by agreement of the parties to these Terms shall be finally settled in accordance with the arbitration rules of JAMS then in force, by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be Los Angeles, California, U.S.A.
50. Proceedings; Judgment. The proceedings shall be confidential. The award rendered shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction. In any action, suit or proceeding to enforce rights under these Terms, the prevailing party shall be entitled to recover, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs and expenses of every kind in connection with the action, suit or proceeding, any appeal or petition for review, the collection of any award or the enforcement of any order, as determined by the arbitrator(s) or court, as applicable.
Miscellaneous
51. Entire Agreement. These Service Terms as well as the EarthShift Guidelines, Manager Service Agreement and any feature-specific or other guidelines, terms or rules that may be posted or provided to you by EarthShift Systems and related to the EarthShift Network constitute the entire agreement between us regarding the EarthShift Network and supersedes and merges any prior proposals, understandings and contemporaneous communications.
52. Enforceability; No Waiver. If any provision of these Service Terms is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that these Service Terms shall otherwise remain in full force and effect and enforceable. Our failure to enforce any part of these Service Terms shall not constitute a waiver of our right to later enforce that or any other part of these Service Terms. In order for any waiver of compliance with these Service Terms to be binding, we must provide you with written notice of such waiver. The failure of either party to enforce its rights under these Service Terms at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.
53. Relationship Of The Parties. You and EarthShift Systems are independent contractors, and no agency, partnership, or joint venture relationship is intended or created by these Service Terms.
54. Interpretation. The section and paragraph headings in these Service Terms are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in these Terms shall be read as being followed by “without limitation” where appropriate.
55. No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in these Terms there shall be no third party beneficiaries.
56. Survival. Even after your access to the EarthShift Network is terminated, or your use of the EarthShift Network discontinues, certain of these Terms will remain in effect. All terms that by their nature may survive termination of these Terms shall be deemed to survive such termination. Sections 1, 2, 16, 19, 20-25, 35, 37-55 shall also survive any termination or expiration of these Terms.
How can you notify us? If you have any questions, complaints, or claims with respect to the EarthShift Network, you may contact us at Attn: Star Building Group, 7083 Hollywood Blvd., 1st Floor, Hollywood, CA 90028 or at: terms@starbuildinggroup.com