VERSION 1.01
EFFECTIVE DATE: 4/1/2020
LAST UPDATED DATE: 5/4/2020
PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY. THE TERMS OF USE CONSTITUTE A BINDING AGREEMENT BETWEEN YOU (AS DEFINED BELOW) AND THE DEMIPLANE CORPORATION (“DEMIPLANE”). THIS WEBSITE, WWW.DEMIPLANE.COM, AND ANY OTHER WEBSITES OF DEMIPLANE, ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY DEMIPLANE. THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE BY ACCESS OR USING THE WEBSITE IN ANYWAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE, INCLUDING ANY GAMES OR SESSIONS PROVIDED ON THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS FOR AN ACCOUNT, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH DEMIPLANE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE. THE TERM: (I) “DEMIPLANE”, “WE”, “US”, OR“OUR” REFER TO DEMIPLANE, INC.; (II) “YOU”, “YOUR”, OR “USER” REFERS TO YOU, EACH VISITOR OF THE SITE, AND THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE (INCLUDING USERS WHOUSE DEMIPLANE TO FIND SESSIONS TO PLAY AND USERS WHO OFFER AND PERFORM THE ROLE AS HOST OF SESSIONS WITH USERS WHO WERE MATCHED OR INVITED THROUGH DEMIPLANE); AND (III) “DEMIPLANE PROPERTY” AND “DEMIPLANE PROPERTIES” REFERS COLLECTIVELY TO THE WEBSITE AND SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
PLEASE BE AWARE THAT SECTION 19 OF THIS TERMS OF USE, BELOW,CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND DEMIPLANE HAVE AGAINSTEACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSEOR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS TERMS OF USE. INPARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITEDEXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINALARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILLONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON ANINDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ORREPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TOPURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURYTRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TOYOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OFTHE STATE OF WISCONSIN, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUTGIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OFANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FORTHE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS TERMS OF USE.
a. Revisions to Terms. PLEASE NOTE THAT THE TERMSOF USE IS SUBJECT TO CHANGE BY DEMIPLANE IN ITS SOLE DISCRETION AT ANYTIME. When changes are made, Demiplane will make a new copy of the Terms Of Use available on the Website or from within, or through, the affected Service On the Website. We will also update the “Last Updated” date at the top of the Terms of Use. If we make any material changes, and you have registered with us to create an Account (as defined in Section 2 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms of Use. Any changes to the Terms of Use will be effective immediately for new users of the Website and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website For existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty(30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 2 below). Demiplane may require you to provide consent to the updated Terms of Use in a specified manner before further use of the Website and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website And/or Services constitutes your acceptance of such change(s). PLEASEREGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
b. Certain Restrictions. The rights granted to you in the Terms of Use are subject to the following restrictions : (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Demiplane Properties or any portion of the Demiplane Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Demiplane Properties (including images, text,page layout or form) of Demiplane; (c) you shall not use any meta tags or other“hidden text” using Demiplane’s name or trademarks ; (d) you shall not modify,translate, adapt, merge, make derivative works of, disassemble, decompile,reverse compile or reverse engineer any part of Demiplane Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers,avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Demiplane Properties In order to build a similar or competitive website, application or service; (g)except as expressly stated herein, no part of Demiplane Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Demiplane Properties. Any future release, update or other addition to Demiplane Properties shall be subject to the Terms of Use. Demiplane, its suppliers and service providers reserve all rights not granted in the Terms of Use. Any unauthorized use of any Demiplane Property terminates the licenses granted by Demiplane pursuant to the Terms of Use.
c. Third-Party Materials. As a part of Demiplane Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Demiplane to monitor such materials and that you access these materials at your own risk.
a. Registering Your Account. In order to access certain features of Demiplane Properties you may be required to become a Registered User. For purposes of the Terms of Use, a “Registered User” is a user who has registered an account on the Website (“Account”) or has a valid account on the social networking service (“SNS”) through which the user has connected to the Website (each such account, a “Third-Party Account”).
b. Access Through a SNS. If you access the Demiplane Properties through a SNS as part of the functionality of the Website and/or the Services, you may link your Account with Third-Party Accounts, by allowing Demiplane to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Demiplane and/or grant Demiplane access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligation Demiplane to pay any fees or making Demiplane subject to any usage limitations imposed by such third-party service providers. By granting Demiplane Access to any Third-Party Accounts, you understand that Demiplane may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Demiplane Properties (collectively, “Content”)that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Demiplane Properties via your Account. Unless otherwise specified in the Terms of Use, all SNS Content Shall be considered to be Your Content (as defined in Section 3) for all purposes of the Terms of Use. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Demiplane Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Demiplane’s access to such Third-Party Account Is terminated by the third-party service provider, then your Account and SNS Content will no longer be available on and through Demiplane Properties. You have the ability to disable the connection between the Demiplane Properties And your Third-Party Accounts at any time by deleting your Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERSASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR TERMS OFUSE(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND DEMIPLANE DISCLAIMS ANYLIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BYSUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THATYOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Demiplane makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Demiplane is not responsible for any SNS Content.
c. Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least thirteen (13) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using Demiplane Properties Under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account To restrict use by minors, and you will accept full responsibility for any unauthorized use of Demiplane Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Demiplane Immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If You provide any information that is untrue, inaccurate, not current or incomplete, or Demiplane has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Demiplane has the right to suspend or terminate your Account and refuse any and all current or future use of Demiplane Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Demiplane reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Demiplane Properties if you have been previously removed by Demiplane, or if you have been previously banned from any of Demiplane Properties.
d. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Demiplane.
e. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Demiplane Properties, including but not limited to, a mobile device or computer that is suitable to connect with and use Demiplane Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Demiplane Properties. By providing your cell phone number and using the Services, you hereby affirmatively consent to our use of your cell phone number for calls and texts in order to perform and improve upon the Services. Demiplane will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing privacy@demiplane.com.
a. Types of Content. You acknowledge that all Content, including Demiplane Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Demiplane, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Demiplane Properties (“Your Content”), and that you and other Registered Users of Demiplane Properties, and not Demiplane, are similarly responsible for all Content that you and they Make Available through Demiplane Properties (“User Content”).
b. No Obligation to Pre-Screen Content. You acknowledge that Demiplane has no obligation to pre-screen Content (including, but not limited to, User Content), although Demiplane reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms of Use you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Demiplane pre-screens, refuses or removes any Content, you acknowledge that Demiplane will do so for Demiplane’s benefit, not yours. Without limiting the foregoing, Demiplane shall have the right to remove any Content that violates the Terms of Use or is otherwise objectionable.
c. Storage. Unless expressly agreed to by Demiplane in writing elsewhere, Demiplane has no obligation to store any of Your Content That you Make Available on Demiplane Properties. Demiplane has no responsibility or liability for the deletion or accuracy of any Content,including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Demiplane Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose,the system may default to its most permissive setting. You agree that Demiplane retains the right to create reasonable limits on Demiplane’s use and storage of the Content, including Your Content, such as limits on file size,storage space, processing capacity, and similar limits described on the Website And as otherwise determined by Demiplane in its sole discretion.
a. Demiplane Properties. Except with respect to Your Content and User Content, you agree that Demiplane and its suppliers own all rights, title and interest in Demiplane Properties (including but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Demiplane game, and Demiplane game clients and server software ). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Demiplane Properties.
b. Trademarks. Demiplane and all related graphics, logos, service marks and trade names used on or in connection with any Demiplane Properties or in connection with the Services are the trademarks of Demiplane and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Demiplane Properties are the property of their respective owners.
c. Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in Demiplane Properties.
d. Your Content. Demiplane does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Demiplane Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
e. License to Your Content. Subject to any applicable account settings that you select, you grant Demiplane a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Demiplane Properties to you and to our other Registered Users. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Demiplane Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Demiplane, are responsible for all of Your Content that you Make Available on or in Demiplane Properties.
f. Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on Demiplane Properties, you hereby expressly permit Demiplane to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
g. Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Demiplane in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
h. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Demiplane (“Feedback”) is at your own risk and that Demiplane has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Demiplane a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Demiplane Properties and/or Demiplane’s business.
a. Cheating and Hacking. You agree that you will not, under any circumstances:
(i) Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with any Demiplane Properties;
(ii) Interfere with or damage Demiplane Properties, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
(iii) Modify or cause to be modified any files that are a part of Demiplane Properties;
(iv) Disrupt, overburden, or aid or assist in the disruption or overburdening of: (i) any computer or server used to offer or support Demiplane Properties; or (ii) the enjoyment of Demiplane Properties by any other person;
(v) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon Demiplane Properties, or other attempts to disrupt Demiplane Properties or any other person’s use or enjoyment of Demiplane Properties;
(vi) Attempt to gain unauthorized access to Demiplane Properties, accounts registered to others, or to the computers, servers or networks connected to Demiplane Properties by any means other than the user interface provided by Demiplane, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of Demiplane Properties;
(vii) Access, tamper with or use non-public areas of Demiplane Properties, Demiplane’s computer systems, or the technical delivery systems of Demiplane’s providers;
(viii) Attempt to probe, scan, or test the vulnerability of any Demiplane system or network, or breach any security or authentication measures;
(ix) Disrupt or interfere with the security of, or otherwise cause harm to, Demiplane Properties, systems, resources, accounts, passwords, servers or networks connected to or accessible through Demiplane Properties or any affiliated or linked sites; or
(x) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Demiplane or any of Demiplane’s providers or any other third party (including another user) to protect Demiplane Properties.
You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms of Use):
a. Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of Demiplane Properties (including your Account), or access to or use of Demiplane Properties;
b. Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with any Demiplane Property;
c. Use Demiplane Properties or any part thereof for any commercial purpose, including, but not limited to, communicating or facilitating any commercial advertisement or solicitation;
d. Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise) in connection with Demiplane Properties; or
e. Market any goods or services for any business purposes on or in connection with any Demiplane Properties
You agree that you will not, under any circumstances:
a. Interfere or attempt to interfere with the proper functioning of Demiplane Properties or connect to or use Demiplane Properties in any way not expressly permitted by the Terms of Use
b. Systematically retrieve data or other content from Demiplane Properties to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods or through the use of bots, crawlers, spiders, or otherwise;
c. Use, display, mirror or frame Demiplane Properties, or any individual element within Demiplane Properties, Demiplane’s name, any Demiplane trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Demiplane’s express written consent;
d. Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through Demiplane Properties or that is in transit from or to Demiplane Properties, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by Demiplane Properties;
e. Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or Demiplane Properties, whether through the use of a network analyzer, packet sniffer or other device;
f. Make any automated use of Demiplane Properties, or take any action that imposes or may impose (in Demiplane’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for Demiplane Properties;
g. Bypass any robot exclusion headers or other measures Demiplane takes to restrict access to Demiplane Properties, or use any software, technology or device to send content or messages, scrape, spider or crawl Demiplane Properties, or harvest or manipulate data;
h. Use, facilitate, create, or maintain any unauthorized connection to Demiplane Properties, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of Demiplane Properties; or (ii) any connection using programs, tools or software not expressly approved by Demiplane;
i. Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide Demiplane Properties;
j. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through Demiplane Properties;
k. Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
l. Solicit or attempt to solicit personal information from other users of Demiplane Properties;
m. Use Demiplane Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
n. Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use Demiplane Properties to send altered, deceptive or false source-identifying information; or
o. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1×1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
In connection with your use of Demiplane Properties, you shall not:
a. Make Available any Content that, in Demiplane’s sole discretion, (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
b. Harm minors in any way;
c. Impersonate any person or entity, including, but not limited to, Demiplane personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
d. Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
e. Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
f. Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
g. Register for more than one Account or register for an Account on behalf of an individual other than yourself;
h. Stalk or otherwise harass any other user of Demiplane Properties; or
i. Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
Demiplane may, but is not obligated to, monitor or review Demiplane Properties and Content at any time. Without limiting the foregoing, Demiplane shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms of Use or any applicable law. Although Demiplane does not generally monitor user activity occurring in connection with Demiplane Properties or Content, if Demiplane becomes aware of any possible violations by you of any provision of the Terms of Use, Demiplane reserves the right to investigate such violations, and Demiplane may, at its sole discretion, immediately terminate your license to use Demiplane Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
a. User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Demiplane reserves the right, but has no obligation, to intercede in such disputes. You agree that Demiplane will not be responsible for any liability incurred as the result of such interactions.
b. Content Provided by Other Users. Demiplane Properties may contain User Content provided by other Registered Users. Demiplane is not responsible for and does not control User Content. Demiplane has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Registered Users at your own risk.
a. Third-Party Websites, Applications and Ads. Demiplane Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Demiplane Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Demiplane. Demiplane is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Demiplane provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, the Terms of Use and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
a. Transactions. Registered Users of the Services contract directly with other Registered Users. Demiplane will not be a party to any contracts between Registered Users. Demiplane facilitates these contracts by connecting Registered Users and supplying a medium for the exchange of money. All payments must be made through the Services.
b. Payment. You agree to pay all fees and charges to your Account in accordance with the fees, charges and billing terms in effect at the time the fee or charge is due and payable. You must provide Demiplane or Demiplane’s payment provider (“Payment Provider”) with a valid credit card. You agree that Demiplane is authorized to charge your credit charge for all fees and charges due and payable hereunder and that no additional notice or consent is required. You agree to immediately notify Demiplane of any change in your billing address or the credit card used for payment hereunder. Demiplane reserves the right at any time to change its prices and billing methods, either immediately upon posting on Demiplane Properties or by e-mail delivery to you.
c. Taxes. The payments required under the Terms of Use do not include any Sales Tax that may be due in connection with the Services provided under this Terms of Use. If Demiplane determines it has a legal obligation to collect a Sales Tax from you in connection with this Terms of Use, Demiplane shall collect such Sales Tax in addition to the payments required under this Terms of Use. If any Services, or payments for any Services, under the Terms of Use are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Demiplane, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Demiplane for any liability or expense Demiplane may incur in connection with such Sales Taxes. Upon Demiplane’s request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
d. Withholding Taxes. You agree to make all payments of fees to Demiplane free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Demiplane will be your sole responsibility, and you will provide Demiplane with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
e. Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.
f. Advertising Revenue. Demiplane reserves the right to display Third-Party Ads before, after, or in conjunction with User Content posted on the Services, and you acknowledge and agree that Demiplane has no obligation to you in connection therewith (including, without limitation, any obligation to share revenue received by Demiplane as a result of such advertising).
g. Disputes. Unless otherwise provided by the applicable Payment Provider, you must notify us in writing at the following address: The Demiplane Corporation, 1025 Lombardi Access Road, Green Bay, WI 54304 within seven (7) days after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived.
h. Third Party Provider. Demiplane currently uses Stripe, Inc., as our Payment Provider (e.g., card acceptance, merchant settlement, and related services). By buying or selling on any Demiplane Property, including buying or selling “paid sessions”, “charity sessions”, or providing tips or donations to charities, you agree to be bound by Stripe’s Privacy Policy: https://stripe.com/privacy and hereby consent and authorize Demiplane and Stripe to share any information and payment instructions you provide with one or more Third Party Service Provider(s) to the minimum extent required to complete your transactions. By transacting on the Demiplane Properties, you also agree to be bound by Stripe’s terms of service: https://stripe.com/connect-account/legal.
You agree to indemnify and hold Demiplane, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Demiplane Party” and collectively, the “Demiplane Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Demiplane Property; (c) your violation of the Terms of Use; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Demiplane reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Demiplane in asserting any available defenses. This provision does not require you to indemnify any of the Demiplane Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms of Use and/or your access to Demiplane Properties.
a. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF DEMIPLANE PROPERTIES IS AT YOUR SOLE RISK, AND DEMIPLANE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. DEMIPLANE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
b. DEMIPLANE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) DEMIPLANE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF DEMIPLANE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF DEMIPLANE PROPERTIES WILL BE ACCURATE OR RELIABLE.
c. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH DEMIPLANE PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS DEMIPLANE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
d. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. DEMIPLANE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
e. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DEMIPLANE OR THROUGH DEMIPLANE PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
f. FROM TIME TO TIME, DEMIPLANE MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT DEMIPLANE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
g. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT DEMIPLANE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD DEMIPLANE PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU .
h. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF DEMIPLANE PROPERTIES. YOU UNDERSTAND THAT DEMIPLANE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF DEMIPLANE PROPERTIES.
a. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL DEMIPLANE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT DEMIPLANE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS OF USE OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF DEMIPLANE PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE DEMIPLANE PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH DEMIPLANE PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON DEMIPLANE PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO DEMIPLANE PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A DEMIPLANE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A DEMIPLANE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A DEMIPLANE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
b. Cap on Liability. UNDER NO CIRCUMSTANCES WILL DEMIPLANE PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO DEMIPLANE BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A DEMIPLANE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A DEMIPLANE PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A DEMIPLANE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
c. User Content. EXCEPT FOR DEMIPLANE’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE DEMIPLANE’S PRIVACY POLICY, DEMIPLANE ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
d. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DEMIPLANE AND YOU.
e. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Demiplane’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Demiplane by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Demiplane Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Demiplane Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Demiplane’s Copyright Agent for notice of claims of copyright infringement is as follows: copyright@demiplane.com.
a. Violations. If Demiplane becomes aware of any possible violations by you of the Terms of Use, Demiplane reserves the right to investigate such violations. If, as a result of the investigation, Demiplane believes that criminal activity has occurred, Demiplane reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Demiplane is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Demiplane Properties, including Your Content, in Demiplane’s possession in connection with your use of Demiplane Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms of Use, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Demiplane, its Registered Users or the public, and all enforcement or other government officials, as Demiplane in its sole discretion believes to be necessary or appropriate.
b. Breach. In the event that Demiplane determines, in its sole discretion, that you have breached any portion of the Terms of Use, or have otherwise demonstrated conduct inappropriate for Demiplane Properties, Demiplane reserves the right to:
(i) Warn you via e-mail (to any e-mail address you have provided to Demiplane) that you have violated the Terms of Use;
(ii) Delete any of Your Content provided by you or your agent(s) to Demiplane Properties;
(iii) Discontinue your registration(s) with any of Demiplane Properties, including any Services or any Demiplane community;
(iv) Discontinue your subscription to any Services;
(v) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(vi) Pursue any other action which Demiplane deems to be appropriate.
a. Term. The Terms of Use commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Demiplane Properties, unless terminated earlier in accordance with the Terms of Use.
b. Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Terms of Use commenced on the earlier to occur of (a) the date you first used Demiplane Properties or (b) the date you accepted the Terms of Use and will remain in full force and effect while you use any Demiplane Properties, unless earlier terminated in accordance with the Terms of Use.
c. Termination of Services by Demiplane. Demiplane has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Demiplane’s sole discretion and that Demiplane shall not be liable to you or any third party for any termination of your Account.
d. Termination of Services by You. If you want to terminate the Services provided by Demiplane, you may do so by (a) notifying Demiplane at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Demiplane’s address set forth below.
e. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Demiplane will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms of Use which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
f. No Subsequent Registration. If your registration(s) with or ability to access Demiplane Properties, or any other Demiplane community is discontinued by Demiplane due to your violation of any portion of the Terms of Use or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Demiplane Properties or any Demiplane community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Demiplane Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Demiplane reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
Demiplane Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Demiplane intends to announce such Services or Content in your country. Demiplane Properties are controlled and offered by Demiplane from its facilities in the United States of America. Demiplane makes no representations that Demiplane Properties are appropriate or available for use in other locations. Those who access or use Demiplane Properties from other countries do so at their own volition and are responsible for compliance with local law.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Demiplane and limits the manner in which you can seek relief from us.
a. Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Demiplane, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify,; and (2) you or Demiplane may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Terms of Use or any prior version of this Terms of Use.
b. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: Corporations Service Company, 251 Little Falls Drive, Wilmington, DE 19807. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Demiplane will pay them for you. In addition, Demiplane will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
c. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
d. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Demiplane. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms of Use (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
e. Waiver of Jury Trial. YOU AND DEMIPLANE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Demiplane are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
f. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Wisconsin. All other disputes, claims, or requests for relief shall be arbitrated.
g. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@demiplane.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Demiplane username (if any), the email address you used to set up your Demiplane account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Terms of Use will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
h. Severability. Except as provided in Section 19(h), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
i. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Demiplane.
j. Modification. Notwithstanding any provision in this Terms of Use to the contrary, we agree that if Demiplane makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Demiplane at the following address: legal@demiplane.com.
a. Electronic Communications. The communications between you and Demiplane may take place via electronic means, whether you visit Demiplane Properties or send Demiplane e-mails, or whether Demiplane posts notices on Demiplane Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Demiplane in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Demiplane provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”) .
b. Release. You hereby release Demiplane Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Demiplane Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms of Use or your use of Demiplane Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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 and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Demiplane Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
c. Assignment. The Terms of Use, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Demiplane’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
d. Force Majeure. Demiplane shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
e. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Demiplane Properties, please contact us at: support@demiplane.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
f. Limitation Period. YOU AND DEMIPLANE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, DEMIPLANE PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g. Exclusive Venue. To the extent the parties are permitted under this Terms of Use to initiate litigation in a court, both you and Demiplane agree that all claims and disputes arising out of or relating to the Terms of Use will be litigated exclusively in the state or federal courts located in the Eastern District of Wisconsin.
h. Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF WISCONSIN, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE TERMS OF USE.
i. Choice of Language. It is the express wish of the parties that the Terms of Use and all related documents have been drawn up in English.
j. Notice. Where Demiplane requires that you provide an e-mail address, you are responsible for providing Demiplane with your most current e-mail address. In the event that the last e-mail address you provided to Demiplane is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms of Use, Demiplane’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Demiplane at the following address: The Demiplane Corporation, 1025 Lombardi Access Road, Green Bay, WI 54304
k. Such notice shall be deemed given when received by Demiplane by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
l. Waiver. Any waiver or failure to enforce any provision of the Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
m. Severability. If any portion of this Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
n. Export Control. You may not use, export, import, or transfer Demiplane Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Demiplane Properties, and any other applicable laws. In particular, but without limitation, Demiplane Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Demiplane Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties . You also will not use Demiplane Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Demiplane are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Demiplane products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
o. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210 .
p. Entire Agreement. The Terms of Use is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.