These Terms require the binding arbitration of any and all disputes, as stated in the “resolution of disputes” section (Section 7), which you should read in its entirety. You understand that this is a legally binding instrument and agree to abide by its terms.
- NO RIGHT TO COPY CONTENT
The Content is protected by Copyright. You may not copy, distribute or transmit any Content. The only exception is Content that DHM specifically encourages you to download and use. In those cases, you may copy and use such Content only as, for the purpose and to the extent indicated on the Site.
- NO WARRANTY
DHM makes no warranties of any kind. Without limiting the generality of the foregoing:
- The Content is provided AS-IS, without any warranties, express or implied. Your use of the Content, including any vendor listings, tutorials, downloads, recommendations and suggestions, is at your sole risk.
- The Site may include links to other websites. DHM makes no warranties whatsoever regarding any other website or any of the content therein. You use links to navigate to any website at your sole risk.
- DHM makes no warranties that the Site will continue to be available or that your use of the Site will be uninterrupted or error free.
- DHM shall have no liability whatsoever in connection with any loss or corruption of or unauthorized duplication, distribution or other exploitation of any User Content. You are encouraged to retain copies (including backup copies) of your User Content.
- USER CONTENT
- “User Content” means any comment, article, advertisement, listing or other content of any type or nature, including, but not limited to, text, images, video, audio and other forms of content, in any format. User Content includes any content that you post to the Site and any content that you submit to DHM for transmission or display on the Site.
- You grant DHM a perpetual, irrevocable, worldwide, fully-paid-up, royalty-free license to create derivative works and modifications based upon your User Content and to copy, distribute, transmit, publicly display and publicly perform such User Content and such derivative works and modifications. You irrevocably waive any claim that any modifications, uses, publications or exploitations of any User Content will or may cause harm to your honor or reputation constitute a distortion or mutilation of such User Content.
- For each item of User Content, this license will be exclusive during the six (6) week period beginning when you post that item to the Site (the “Exclusivity Period”) and will be nonexclusive after the Exclusivity Period. That means that, during the Exclusivity Period with respect to any item of User Content, you may not post such item to any other site or otherwise distribute, publicly display or publicly perform such item in any way.
- You irrevocably consent on your behalf and on behalf of any other person depicted or otherwise referenced or included in any User Content you post to any and all uses, for any purpose, by DHM and by any of its vendors, customers, licensees and advertisers of any image, name or other aspect of the persona of you or such other person that is included in such User Content.
- You warrant to DHM that you are authorized to grant DHM the foregoing consents and that you own the copyrights to the User Content that you post, free and clear of any claims or rights of any person, or that you are otherwise authorized under those copyrights to grant to DHM all rights granted in these Terms. You further warrant that you have not posted the User Content to any other website or otherwise made or authorized any third party to make the User Content publically available.
- You agree not to post any User Content in any way that violates any rights of any other person. You agree that you will be responsible to pay or, at DHM’ option, to reimburse DHM for any costs DHM incurs to defend, and any settlement or damages that DHM pays in connection with, any claim by any person that your User Content is defamatory or infringes or violates any copyright, right of privacy or other right of any person.
- You agree not to post User Content that is inconsistent with the spirit of the Site or that might offend its community of users. Forbidden User Content includes any that disparages any person or group. User Content of a racial, sexual, sexist, obscene, violent, threatening, political or controversial nature will generally be inappropriate. You further agree not to post any User Content that includes any trade secret or any personal or private information of any person or that is intended or could reasonably be expected to annoy, defame or harass any person.
- Subject to Section 9, DHM does not have any responsibility or obligation to monitor the User Content or to remove or block any User Content that violates this Section 3. However, DHM reserve the right to do so and to take down or block any User Content at any time and for any reason, in DHM’ sole discretion.
- MODIFICATIONS TO THESE TERMS
DHM may modify these Terms at any time and from time to time at its sole discretion. DHM will post a reasonably prominent notice of any such modifications on the Site. Your use of the Site or any Content, including but not limited to by submitting or posting any User Content, after such notice is posted means that you agree to the modifications. Any User Content that you posted to the Site before such modification will be subject to the modified Terms unless, within thirty (30) days after DHM posts a notice of such modification as provided in this Section 4, you remove such User Content from the Site.
- NO HARMFUL ACTIVITY
You will not use the Site or any Content in connection with any criminal, tortious or other wrongful activity or in any way that impairs or is intended to impair the operation or use the Site. You will not obtain or seek access to any data or information that DHM stores or makes available on the Site without DHM’ prior written consent.
- LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, neither DHM nor its affiliates nor its or its affiliates’ licensors, suppliers or service providers nor any of their respective officers, directors, owners, employees, agents, suppliers or representatives (collectively, the “DHM Parties”) will be liable for any special, incidental, consequential or exemplary damages arising out of or in connection with the Site, the Content, the User Content or these Terms, even if any DHM Party has been advised of the possibility of such damages. To the maximum extent permitted by applicable law, in no event will the aggregate liability of the DHM Parties’ for any claims relating to the Site, the Content, the User Content or these Terms, whether sounding in contract, tort or any other theory of liability, exceed, in the aggregate for all claims, $50.
- DISPUTE RESOLUTION: BINDING ARBITRATION; NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS.
- This Section 7 shall apply only if you reside in the United States of America. This Section 7 shall be of no force or effect if you do not reside in the United States of America.
- You and DHM shall arbitrate any and all Disputes, as follows:
- “Dispute” as used in this Section 7 means any dispute arising out of or in any way related to these Terms, any amendments or addenda to these Terms, or the subject matter of these Terms, including but not limited to any contract, tort, statutory or equity claims that relate in any way to (1) these Terms, the Site, the Content or the User Content (collectively, the “Contract Subject Matter”), (2) the duplication, use, operation, licensing, distribution, sale, advertising, promotion, transmission, provision or marketing of any of the Contract Subject Matter, or (3) any claims, statements, promises, descriptions, representations or warranties made in connection with the Contract Subject Matter.
- This Section 7 shall apply to the resolution of Disputes. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
- Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute between DHM and you will be subject to binding arbitration.
- DHM and you agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding to resolve any Dispute in any court. In the event of any Dispute, both parties agree that these Terms will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (“FAA”) to the maximum extent permitted by applicable law.
- All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief in an appropriate court of law.
- The parties expressly agree that any Dispute is personal to them, and any such Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding.
- The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that DHM and you shall mutually agree upon. If, after making a reasonable effort, DHM and you are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules or the appropriate rules of any alternative arbitration forum selected by DHM and you or appointed by a court, subject to the following modifications:
- The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes.
- As limited by the FAA, these Terms and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by these Terms as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding.
- The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary, with the caveat that each party shall have the right to take the deposition of at least one person for at least one day.
- In making any award, the arbitrator will be restricted by the Limitation of Liability provisions in these Terms (Section 6), and will not have jurisdiction to make an award to any party to the arbitration contrary to the Limitation of Liability provisions; provided however that if the enforceability of any of these restrictions is limited by the applicable substantive law or by the AAA rules, that restriction will only be enforced to the extent permitted by such law or rules.
- The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) will be entitled to recover its reasonable attorneys’ fees and costs incurred: (i) a motion which any party is required to make in the courts to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated in this Section 7.
- DHM will pay the amount of any arbitration costs and fees charged by the AAA, subject to the right of DHM to request that the arbitrator allocate the ultimate responsibility for that fee in a fair and reasonable manner. Unless the arbitrator finds that you are economically unable to pay a share of the arbitrator’s fee or that it is otherwise inappropriate for you to do so, the arbitrator ultimately may decide that you are responsible for some portion of that fee in the arbitrator’s discretion.
- The AAA rules are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at adr.org.
- GOVERNING LAW
If you reside in the United States of America, then, with the exception of the provision above that the enforceability of Section 7 is governed both procedurally and substantively by the FAA to the maximum extent permitted by applicable law, these Terms otherwise will be construed and enforced in accordance with the laws of the state in which you reside and of the United States of America. If you do not reside in the United States of America, these Terms will be governed by the laws of South Africa.
- If any part of these Terms is held invalid or unenforceable, the remaining parts of these Terms shall be unimpaired and remain in full force and effect. Further, if any part of these Terms is partially valid and enforceable and partially invalid or unenforceable, the valid and enforceable part shall be enforced to the maximum extent allowed under applicable law. Without limiting the generality of the foregoing, if for any reason any exclusive right or license granted hereunder is not valid or enforceable but a nonexclusive right or license of the same scope (other than with respect to exclusivity) would have been enforceable, than such right or license shall be fully valid and enforceable, with the exception only of any exclusivity with respect thereto that is not valid and enforceable under applicable law.
- Notices and other communications from DHM to you may be made by electronic means, including, without limitation, by posting on the homepage of the Site or by email.
- These Terms constitute the entire agreement between DHM and you with respect to the subject matter hereof and supersede any and all prior or contemporaneous oral or written communications relating to the subject matter hereof.
- Nothing in these Terms shall be deemed to confer upon any person or entity other than the parties hereto and their respective assigns or other successors in interest a right of action either under these Terms or in any manner whatsoever.