Terms
of Use
Acceptance of the Terms of Use
These terms of use are entered into by and between You, on
the one hand, and Lyon Living and its affiliates, on the other hand (collectively,
"Company", "we" or "us"). The
following terms and conditions (these "Terms of Use")
govern your access to and use of this website, including any content,
functionality and services offered on or through this website (the "Website"), whether as a guest or a registered user.
Please read the Terms of Use carefully before you start to
use the Website. By using the Website or
by clicking to accept or agree to the Terms of Use when this option is made
available to you, you accept and agree to be bound and abide by these Terms of
Use. If you do not want to agree to these Terms of Use, you are not authorized
to access or use the Website.
Changes to the Terms of Use
We may revise and update these Terms of Use from time to
time in our sole discretion. All changes are effective immediately when we post
them, and apply to all access to and use of the Website thereafter. Your
continued use of the Website following the posting of revised Terms of Use
means that you accept and agree to the changes. You are expected to check this
page from time to time so you are aware of any changes, as they are binding on
you. We do not have an obligation to notify you of any updates to these Terms
of Use.
Accessing the Website and Account Security
We reserve the right to withdraw or amend this Website, and
any service or material we provide on the Website, in our sole discretion
without notice. We reserve the right to deny access to the Website. We will not
be liable if for any reason all or any part of the Website is unavailable at
any time or for any period. The Website is provided “as-is” and “when available”.
We are not responsible if you suffer any harm or loss because the Website is
unavailable or because of any defect in the Website or because the Website does
not function as intended or as expected. From time to time, we may restrict
access to some parts of the Website, or the entire Website, to users, including
registered users.
You are
responsible for:
·
Making all arrangements necessary for
you to have access to the Website.
·
Ensuring that all persons who access
the Website through your internet connection are aware of these Terms of Use
and comply with them.
To access the Website or some of the resources it offers,
you may be asked to provide certain registration details or other information.
It is a condition of your use of the Website that all the information you
provide on the Website is accurate, current and complete. You agree that all
information you provide to register with this Website or otherwise, including
but not limited to through the use of any interactive features on the Website,
is governed by our Privacy Policy, and you consent to all actions we take with
respect to your information consistent with our Privacy Policy.
If you choose, or are provided with, a user name, password
or any other piece of information as part of our security procedures, you must
treat such information as confidential, and you must not disclose it to any
other person or entity. You are responsible for the use of your account by any
third person, whether or not you authorize such use. You also acknowledge that your account is
personal to you and agree not to provide any other person with access to this
Website or portions of it using your user name, password or other security
information. You agree to notify us immediately of any unauthorized access to
or use of your user name or password or any other breach of security. You also
agree to ensure that you exit from your account at the end of each session. You
should use particular caution when accessing your account from a public or
shared computer so that others are not able to view or record your password or
other personal information.
We have the right to disable any user name, password or
other identifier, whether chosen by you or provided by us, at any time in our
sole discretion for any or no reason, including if, in our opinion, you have
violated any provision of these Terms of Use.
Intellectual Property Rights
The Website and its entire contents, features and
functionality (including but not limited to all information, software, text,
displays, images, video and audio, and the design, selection and arrangement
thereof), are owned by the Company, its licensors or other providers of such
material and are protected by United States and international copyright,
trademark, patent, trade secret and other intellectual property or proprietary
rights laws.
These Terms of Use permit you to use the Website for your
personal, non-commercial use only. You shall not reproduce, distribute, modify,
create derivative works of, publicly display, publicly perform, republish,
download, store or transmit any of the material on our Website, except as
follows:
·
Your computer may temporarily store
copies of such materials in RAM incidental to your accessing and viewing those
materials.
·
You may store files that are
automatically cached by your Web browser for display enhancement purposes.
·
You may print or download one copy of a
reasonable number of pages of the Website for your own personal, non-commercial
use and not for further reproduction, publication or distribution.
·
If we provide social media features
with certain content, you may take such actions as are enabled by such
features.
You shall
not:
·
Copy any materials from the Website.
·
Modify copies of any materials from the
Website.
·
Use any illustrations, photographs,
video or audio sequences or any graphics separately from the accompanying text.
·
Delete or alter any copyright,
trademark or other proprietary rights notices from copies of materials from the
Website.
·
Download any materials for the Website.
·
Reverse engineer any code from the Website.
You must not access or use for any commercial purposes any
part of the Website or any services or materials available through the Website.
If you print, copy, modify, download or otherwise use or
provide any other person with access to any part of the Website in breach of
the Terms of Use, your right to use the Website will cease immediately and you
must, at our option, return or destroy any copies of the materials you have
made. No right, title or interest in or to the Website or any content on the
Website is transferred to you, and all rights not expressly granted are
reserved by the Company. Any use of the Website not expressly permitted by
these Terms of Use is a breach of these Terms of Use and may violate copyright,
trademark and other laws. You shall not assist any third party in violating
these Terms of Use.
Trademarks
The Company name, and all related names, logos, product and
service names, designs and slogans are trademarks of the Company or its
affiliates or licensors. You must not use such marks without the prior written
permission of the Company. All other names, logos, product and service names,
designs and slogans on this Website are the trademarks of their respective
owners.
Prohibited Uses
You may use the Website only for lawful purposes and in
accordance with these Terms of Use. You agree not to use the Website:
·
In any way that violates any applicable
federal, state, local or international law or regulation (including, without
limitation, any laws regarding the export of data or software to and from the
US or other countries).
·
For the purpose of exploiting, harming
or attempting to exploit or harm minors in any way by exposing them to
inappropriate content, asking for personally identifiable information or
otherwise.
·
To send, knowingly receive, upload,
download, use or re-use any material which does not comply with the Content
Standards set out in these Terms of Use.
·
To transmit, or procure the sending of,
any advertising or promotional material, including any "junk mail",
"chain letter" or "spam" or any other similar solicitation.
·
To impersonate or attempt to
impersonate the Company, a Company employee, another user or any other person
or entity (including, without limitation, by using e-mail addresses or user
names associated with any of the foregoing).
·
To engage in any other conduct that
restricts or inhibits anyone's use or enjoyment of the Website, or which, as
determined by us, may harm the Company or users of the Website or expose them
to liability.
Additionally, you agree not to:
·
Use the Website in any manner that
could disable, overburden, damage, or impair the site or interfere with any
other party's use of the Website, including their ability to engage in real
time activities through the Website.
·
using any robot, spider, crawler,
deep-links, data-mining, data-gathering,
extraction tool, or other automatic device or manual process to monitor,
copy, harvest, gather or “scrape” the web pages or the content contained in the
Website or for any other unauthorized purpose (As a limited exception, publicly
available general purpose search engines and non-commercial public archives may
query the Website for the sole purpose of providing an index with links to the
Website, provided they each do so from a stable IP address or range of IP addresses
using an easily identifiable agent and comply with the Company’s applicable
policies and procedures in effect from time to time, and only to the extent
such unlicensed “fair use” is permitted by applicable copyright law. “General purpose search engine” does not
include a website or search engine or other similar service that specializes in
classified listings or in any subset of classified listings such as housing,
apartments or rentals. Search engines and non-commercial public archives are
not permitted to query or search information protected by a security
verification system (“captcha”) which limits access to human Users.
·
Use any manual process to monitor or
copy any of the material on the Website or for any other unauthorized purpose
without our prior written consent.
·
Use any device, software or routine
that interferes with the proper working of the Website.
·
Introduce into the Website, or into any
computer or system that we own or operate, any viruses, trojan horses, worms,
logic bombs or other material which is malicious or technologically harmful.
·
Attempt to gain unauthorized access to,
interfere with, damage or disrupt any parts of the Website, the server on which
the Website is stored, or any server, computer or database connected to the Website.
·
Attack the Website via a
denial-of-service attack or a distributed denial-of-service attack.
·
Otherwise attempt to interfere with the
proper working of the Website.
User Contributions
The Website may contain user accounts, message boards,
personal web pages or profiles, forums, and other interactive features
(collectively, "Interactive Services")
that allow users to post, submit, publish, display or transmit to other users
or other persons (hereinafter, "post")
content or materials (collectively, "User
Contributions") on or through the Website.
All User Contributions must comply with the Content
Standards set out in these Terms of Use. Any User Contribution you post to the
site will be considered non-confidential and non-proprietary. By providing any
User Contribution on the Website, you grant us and our affiliates and service providers,
and each of their and our respective licensees, successors and assigns the
right to use, reproduce, modify, perform, display, distribute and otherwise
disclose to third parties any such material for any purpose.
You represent and warrant that:
·
You own or control all rights in and to
the User Contributions and have the right to grant the license granted above to
us and our affiliates and service providers, and each of their and our
respective licensees, successors and assigns.
·
All of your User Contributions do and
will comply with these Terms of Use.
You understand and acknowledge that you are responsible for
any User Contributions you submit or contribute, and you, not the Company, have
fully responsibility for such content, including its legality, reliability,
accuracy and appropriateness. We are not responsible, or liable to any third
party, for the content or accuracy of any User Contributions posted by you or
any other user of the Website.
Monitoring and Enforcement; Termination
We have the right to:
·
Remove or refuse to post any User
Contributions for any or no reason in our sole discretion.
·
Take any action with respect to any
User Contribution that we deem necessary or appropriate in our sole discretion,
including if we believe that such User Contribution violates the Terms of Use,
including the Content Standards, infringes any intellectual property right or
other right of any person or entity, threatens the personal safety of users of
the Website or the public or could create liability for the Company.
·
Disclose your identity or other
information about you to any third party who claims that material posted by you
violates their rights, including their intellectual property rights or their
right to privacy.
·
Take appropriate legal action,
including without limitation, referral to law enforcement, for any illegal or
unauthorized use of the Website.
·
Terminate or suspend your access to all
or part of the Website for any or no reason, including without limitation, any
violation of these Terms of Use.
Without limiting the foregoing, we have the right to fully
cooperate with any law enforcement authorities or court order requesting or
directing us to disclose the identity or other information of anyone posting
any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE
COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS
RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A
RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF
INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review material before it is
posted on the Website, and cannot ensure prompt removal of objectionable
material after it has been posted. Accordingly, we assume no liability for any
action or inaction regarding transmissions, communications or content provided
by any user or third party. We have no liability or responsibility to anyone
for performance or nonperformance of the activities described in this section.
Content Standards
These content standards apply to any and all User
Contributions and use of Interactive Services. User Contributions must in their
entirety comply with all applicable federal, state, local and international
laws and regulations. Without limiting the foregoing, User Contributions must
not:
·
Contain any material which is
defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful,
inflammatory or otherwise objectionable.
·
Blackmail, offer to bribe, extort, or
otherwise violate the rights or solicit or any third party.
·
Promote sexually explicit or
pornographic material, violence, or discrimination based on race, sex,
religion, nationality, disability, sexual orientation or age.
·
Infringe any patent, trademark, trade
secret, copyright or other intellectual property or other rights of any other
person.
·
Violate the legal rights (including the
rights of publicity and privacy) of others or contain any material that could
give rise to any civil or criminal liability under applicable laws or
regulations or that otherwise may be in conflict with these Terms of Use and
our Privacy Policy.
·
Be likely to deceive any person.
·
Promote any illegal activity, or
advocate, promote or assist any unlawful act.
·
Cause annoyance, inconvenience or
needless anxiety or be likely to upset, embarrass, alarm or annoy any other
person.
·
Impersonate any person, or misrepresent
your identity or affiliation with any person or organization.
·
Involve commercial activities or sales,
such as contests, sweepstakes and other sales promotions, barter or
advertising.
·
Give the impression that they emanate
from or are endorsed by us or any other person or entity.
Reliance on Information Posted
The information presented on or through the Website is made
available solely for general information purposes. We do not warrant the
accuracy, completeness or usefulness of this information. Any reliance you
place on such information is strictly at your own risk. We disclaim all
liability and responsibility arising from any reliance placed on such materials
by you or any other visitor to the Website, or by anyone who may be informed of
any of its contents.
This Website may include content provided by third parties,
including materials provided by other users, bloggers and third-party
licensors, syndicators, aggregators and/or reporting services. All statements
and/or opinions expressed in these materials, and all articles and responses to
questions and other content, other than the content provided by the Company,
are solely the opinions and the responsibility of the person or entity
providing those materials. These materials do not reflect the opinion of the
Company. We are not responsible, or liable to you or any third party, for the
content or accuracy of any materials provided by any third parties.
Changes to the Website
We may update the content on this Website from time to time,
but its content is not complete or up-to-date. Any of the material on the
Website may be out of date at any given time, and we are under no obligation to
update such material.
Information About You and Your Visits to the Website
All information we collect on this Website is subject to our
Privacy Policy. By using the Website, you consent to all actions taken by us
with respect to your information in compliance with the Privacy Policy.
Links from the Website
If the Website contains links to other sites and resources
provided by third parties, these links are provided for your convenience only.
This includes links contained in advertisements, including banner
advertisements and sponsored links. We have no control over the contents of
those sites or resources, and accept no responsibility for them or for any loss
or damage that may arise from your use of them. If you decide to access any of
the third party websites linked to this Website, you do so entirely at your own
risk and subject to the terms and conditions of use for such websites.
Disclaimer of Warranties
You understand that we cannot and do not guarantee or
warrant that files available for downloading from the internet or the Website
will be free of viruses or other destructive code. You are responsible for
implementing sufficient procedures and checkpoints to satisfy your particular
requirements for anti-virus protection and accuracy of data input and output,
and for maintaining a means external to our site for any reconstruction of any
lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED
DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL
THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER
PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS
OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON
IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OR
ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS
CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON
AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON
ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT
TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY
OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE
ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS
CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE,
RELIABLE, ERROR-FREE OR UNINTERRUPTED OR EVEN AVAILABLE AT ALL, THAT DEFECTS
WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE
OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR
ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR
EXPECTATIONS. IN ADDITION, WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY
NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT A THIRD
PARTY WILL NOT OR CANNOT USE THE WEBSITE TO PLACE MALICIOUS CODE ON YOUR
COMPUTER, TO MISAPPROPRIATE YOUR INFORMATION OR IDENTITY, TO COMMIT A FRAUD
UPON YOU, OR TO OTHERWISE HARM YOU.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED
TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR
PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE
EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR
LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE
LIABLE TO YOU OR TO ANY OTHER PERSON FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL
THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE
WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER
WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER
WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND
SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF
BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA,
AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR
OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE
EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Indemnification
You agree to defend, indemnify and hold harmless the
Company, its affiliates, licensors and service providers, and its and their
respective officers, directors, employees, contractors, agents, licensors,
suppliers, successors and assigns from and against any claims, liabilities,
damages, judgments, awards, losses, costs, expenses or fees (including
reasonable attorneys' fees) arising out of or relating to your violation of
these Terms of Use or your use of the Website, including, but not limited to,
your User Contributions, any use of the Website's content, services and
products other than as expressly authorized in these Terms of Use or your use
of any information obtained from the Website.
Governing Law and Jurisdiction
All matters relating to the Website and these Terms of Use
and any dispute or claim arising therefrom or related thereto (in each case,
including non-contractual disputes or claims), shall be governed by and
construed in accordance with the internal laws of the State in which the
Company maintains its corporate headquarters, without giving effect to any
choice or conflict of law provision or rule.
To the extent the section entitled “Arbitration” is
unenforceable, any legal suit, action or proceeding arising out of, or related
to, these Terms of Use or the Website shall be instituted exclusively in the
federal courts of the United States or the courts of the State and
corresponding County in which the Company maintains its corporate headquarters,
although we retain the right to bring any suit, action or proceeding against
you for breach of these Terms of Use in your country of residence or any other
relevant country. To the extent the section entitled “Arbitration” is
unenforceable, You waive any and all objections to the exercise of jurisdiction
over you by such courts and to venue in such courts.
Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR
RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1)
YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR
CLAIM IS PERMANENTLY BARRED.
Waiver and Severability
No waiver of by the Company of any term or condition set
forth in these Terms of Use shall be deemed a further or continuing waiver of
such term or condition or a waiver of any other term or condition, and any
failure of the Company to assert a right or provision under these Terms of Use
shall not constitute a waiver of such right or provision.
Subject to the terms and conditions of the Arbitration
provision below, if any provision of these Terms of Use is held by a court or
other tribunal of competent jurisdiction to be invalid, illegal or
unenforceable for any reason, such provision shall be eliminated or limited to
the minimum extent such that the remaining provisions of the Terms of Use will continue
in full force and effect.
Entire Agreement
The Terms of Use and our Privacy Policy constitute the sole
and entire agreement between you and the Company with respect to the Website
and supersede all prior and contemporaneous understandings, agreements,
representations and warranties, both written and oral, with respect to the
Website.
ARBITRATION PROVISION -- PLEASE READ CAREFULLY
THIS ARBITRATION PROVISION PROVIDES FOR
RESOLUTION OF ALL DISPUTES THROUGH FINAL AND BINDING ARBITRATION AND REPLACES
THE RIGHT TO GO TO COURT AND HAVE A DISPUTE RESOLVED BY A JUDGE OR JURY. THIS
ARBITRATION PROVISION ALSO WAIVES YOUR ABILITY TO PARTICIPATE IN A CLASS ACTION
LAWSUIT, IN CLASSWIDE ARBITRATION, OR IN ANY PROCEEDING CONSOLIDATED OR JOINED
WITH SIMILARLYSITUATED PERSONS OR ENTITIES.
Governing Law
This Arbitration Provision
(“Arbitration Provision”) is contained in a contract evidencing interstate
commerce and is governed by the Federal Arbitration Act, 9 U.S.C. Sections 116
(“FAA”). In the event a final, binding, and nonappealable judgment finds that
the FAA does not apply, this Arbitration Provision shall be governed by the
arbitration law of the State of California.
Waiver of Jury Trial and Agreement to Arbitrate
Unless You promptly opt out of arbitration
in the manner described below, by using the Website you are waiving your right
to resolve any “Dispute” (defined below) in any court except a small claims
court. Instead, You are agreeing to resolve all Disputes between you and the
Company and “Related Third Parties” (defined below) in binding and mandatory
bilateral (i.e., individual) arbitration.
Arbitration Defined
Arbitration is a process in which
persons with a dispute (1) waive their rights to file a lawsuit waive their
rights to proceed in court before a judge or jury; and
(2) agree, instead, to submit their dispute to a neutral third person known as
an “arbitrator” for a decision resolving the dispute.
Each party to an arbitration has an opportunity to present evidence to the
arbitrator although the ability to engage in discovery is limited. Other rights
available in court proceedings may also be limited. Arbitration proceedings are
private and less formal than court proceedings. The arbitrator will issue a
final and binding decision resolving the dispute. That decision may be enforced
as a court judgment. A court rarely overturns an arbitrator’s decision.
Scope of this Arbitration Provision
For purposes of this Arbitration
Provision, the words “Dispute” and “Disputes” are given the broadest possible
meaning and include, without limitation (1) all claims, disputes, or other
controversies arising from or relating directly or indirectly to this
Arbitration Provision, the validity and scope of this Arbitration Provision,
the matters subject to arbitration under this Arbitration Provision, and any
claim or attempt to set aside or invalidate this Arbitration Provision or any
term contained within it, including but not limited to the “Class Action
Waiver” (as set forth below), on the basis of any law, contract defense, or
other legal theory; (2) all other matters of arbitrability; (3) all federal or state law claims, disputes, or
controversies, arising from or relating directly or indirectly to this
Agreement; (4) any past agreement(s) between you and the Company; (5) all
counterclaims, crossclaims, and thirdparty claims made by you or the Company; (6) all common law
claims, whether they be based on contract, tort, fraud, or other common law
theories, made by you or the Company; (7) all claims based upon a violation of any
state or federal constitution, statute, or regulation, made by you or the
Company; (8) all claims
asserted by the Company or former, current, or future employees, agents,
directors, officers, shareholders, governors, managers, members, parent
companies, subsidiaries, affiliated entities, licensees, attorneys,
predecessors, successors, assigns, designees of the Company (“Related Third
Parties”) against you, including claims for money damages or to collect any sum
claimed to be owed by you; (9) all claims, including for money damages and/or
equitable relief, asserted by you against the Company and/or any Related Third
Parties; (10) all claims asserted on your behalf by another person
or entity; (11) all claims asserted by you (a) as a private attorney
general, (b) as a class representative, (c) in any other representative
capacity, or (d) as member of any class or putative class asserting claims
against the Company or a Related Third Party (referred to as “Representative
Claims”); and (12) all claims arising from or relating directly or
indirectly to the disclosure by us or a Related Third Party of any nonpublic
personal information about you. Related Third Parties are express third party
beneficiaries of this Agreement.
Class Action Waiver
By agreeing to this Arbitration
Provision, You agree to and You are waiving your ability to participate in
class action litigation or classwide arbitration as a class representative, a
class member, or in any other capacity.
Individual Arbitration
Unless you opt out of arbitration in
the manner described below, all Disputes including any Representative Claims by
or against us or Related Third Parties shall be resolved by binding arbitration
on an individual basis with you only.
THEREFORE:
THE ARBITRATOR SHALL NOT CONDUCT CLASS
ARBITRATION; THE ARBITRATOR SHALL NOT ALLOW YOU OR THE COMPANY OR
RELATED THIRD PARTIES TO SERVE (a) AS A REPRESENTATIVE, (b) AS A PRIVATE
ATTORNEY GENERAL, OR (c) IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN ANY
ARBITRATION; AND THE ARBITRATOR HAS NO AUTHORITY TO ORDER OR CONDUCT
CLASS ARBITRATION.
No Joinder or Consolidation of Claims
Neither You nor the Company nor Related
Third Parties may join or consolidate claims or Disputes with the claims or
disputes of other persons or entities. The arbitrator has no authority or power
to order or conduct consolidated or joined proceedings. By entering into this
Arbitration Provision, You and the Company are agreeing to resolve all claims
and Disputes on a bilateral basis.
Small Claims Court
You and the Company and Related Third
Parties shall retain the right to seek resolution of Disputes in small claims
court for claims and Disputes within the scope of the small claims court’s
jurisdiction. Any claims and Disputes that cannot be resolved in small claims
court or over which the small claims court lacks jurisdiction shall be resolved
by binding arbitration as provided by this Arbitration Provision. Any appeal of
a judgment from a small claims court shall be resolved by binding arbitration
as provided by this Arbitration Provision.
Your Covenants and Promises
YOU ACKNOWLEDGE AND AGREE AS FOLLOWS:
YOU ARE GIVING UP YOUR ABILITY TO HAVE A TRIAL BY JUDGE OR JURY TO RESOLVE ANY
CLAIM OR DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; YOU ARE GIVING UP YOUR ABILITY TO HAVE A COURT EXCEPT A
SMALL CLAIMS COURT RESOLVE ANY CLAIM OR DISPUTE ALLEGED AGAINST US OR RELATED
THIRD PARTIES; YOU ARE GIVING UP YOUR ABILITY TO SERVE AS A
REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE
CAPACITY IN ANY LAWSUIT OR ARBITRATION FILED AGAINST US AND/OR RELATED THIRD
PARTIES; YOU ARE GIVING UP YOUR ABILITY TO PARTICIPATE AS A MEMBER
OF A CLASS OF CLAIMANTS IN ANY LAWSUIT OR ARBITRATION FILED AGAINST US AND/OR
RELATED THIRD PARTIES; AND YOU ARE GIVING UP YOUR ABILITY TO JOIN OR CONSOLIDATE
ANY CLAIM OR DISPUTE AGAINST US OR RELATED THIRD PARTIES WITH THE CLAIMS OR
DISPUTES OF OTHER PERSONS OR ENTITIES.
Any party to a Dispute, including
Related Third Parties, shall send notice by certified mail return receipt requested
of the party’s intent to arbitrate, even if a lawsuit has been filed. This
notice must set forth the subject matter of the Dispute along with the relief
requested. The arbitrator shall be:
JAMS,
The Resolution Experts
1920
Main Street, Suite 300
Irvine,
CA 92614
Website:
http://www.jamsadr.com/
Telephone:
(800) 3525267
The party receiving notice of
arbitration shall respond in writing by certified mail return receipt requested
within twenty (20) days. You may obtain a copy of the rules and procedures of
JAMS by contacting them or visiting their websites at the contact information
listed above. You must send your written arbitration demand and notice of
intent to arbitrate to us at the following address:
Lyon Living
c/o Michael Barmettler
4901 Birch Street
Newport Beach, CA 92660
Regardless of who demands arbitration,
it shall be the responsibility of the Party asserting a claims to file and
initiate an arbitration proceeding.
Arbitration Rules
Arbitration proceedings will be
governed by the rules and procedures of JAMS to the extent such rules and
procedures do not contradict the terms of this Arbitration Provision, including
the limitations on the arbitrator above and below. If JAMS has available
expedited or limiteddiscovery rules and procedures, such rules and procedures
shall be used to the extent they do not contradict the terms of this
Arbitration Provision. In the event of a conflict between the Arbitration
Provision and the rules and procedures of the selected arbitration organization
or arbitrator, the terms of this Arbitration Provision shall control. You may
obtain a copy of the rules and procedures of JAMS by contacting JAMS or by
visiting its website at the contact information listed above.
An Alternative Arbitrator
As an alternative to JAMS, the parties
to an arbitration (i.e., you and the Company and/or a Related Third Party) may
agree in writing to select a mutuallyagreeable arbitrator. In addition to
being mutuallyagreed upon, any arbitrator must be an attorney in good standing
with the applicable attorney bar or bars and must have at least ten years of
relevant experience. If (1) JAMS is
unavailable or unwilling to arbitrate a dispute covered by this Arbitration
Provision, and (2) the parties to the Dispute are unable to reach an agreement
as to an alternative arbitrator, then (3) any party to the Dispute may file a
request with a court having jurisdiction for the appointment or designation of
an arbitrator. The court to whom the request is made shall designate an arbitrator
and dismiss any court proceedings in accord with the court’s authority under
Sections 2 through 5 of the Federal Arbitration Act.
The unavailability of JAMS and/or the
inability of the parties to a Dispute to agree on an alternative arbitrator
shall not void this Arbitration Provision nor relieve the Parties and Related
Third Parties of their arbitration obligations.
Arbitration Fees and Location
Throughout the arbitration, each party
to the arbitration shall bear his or her own attorney’s fees and expenses,
including witness and expert witness fees. Any arbitration under this Arbitration at a
other location mutually agreed upon in writing by the parties to the
arbitration.
Available Relief; Recovery of
Arbitration Fees and Attorney’s Fees
The arbitrator shall apply applicable
law, including statutes of limitation, and shall honor applicable claims of
privilege in a manner that is not inconsistent with this Arbitration Provision.
The arbitrator may award any relief available under applicable law, subject to
the limitations set forth in this Arbitration Provision. For the avoidance of
doubt, the arbitrator may decide, with or without a hearing, any motion that is
substantially similar to a motion to dismiss for failure to state a claim or a
motion for summary judgment. An arbitration award must include written findings
and must be supported by substantial evidence or by the failure of the party
with the burden of proof to put forth substantial evidence. An award may be
filed with any court having jurisdiction.
If the arbitrator renders a decision or
an award in your favor resolving the Dispute, then you will not be responsible
for reimbursing the Company or the appropriate Related Third Party for any
arbitration fees that were advanced on your behalf, and the Company or the
appropriate Related Third Party will reimburse you for any Arbitration Fees you
have previously paid. If the arbitrator renders a decision or an award in favor
of the Company or a Related Third Party, then the arbitrator may require you to
reimburse the Company or the Related Third Party for the Arbitration Fees that
were advanced on your behalf, not to exceed the amount which would have been
assessed as court costs if the Dispute had been resolved by a state court with
jurisdiction, less any Arbitration Fees you have previously paid.
The arbitrator may award reasonable
attorney’s fees and expenses to the substantially prevailing party to the
extent permitted by applicable law. Notwithstanding anything to the contrary in
this Agreement, if any claim or Dispute is not arbitrated for whatever reason,
each party shall bear his or her or its or their own costs and legal fees.
PreArbitration Settlement Offer and Minimum Recovery
Provision
If you make a written request for a
prearbitration settlement offer from the Company or the appropriate Related
Third Party in the manner described below and the arbitrator awards you damages
in an amount greater than the Company’s or the Related Third Party’s last
prearbitration settlement offer, the Company or the Related Third Party will
be liable to you for the greater of $500 or the arbitrator’s damages award,
exclusive of any other relief the arbitrator may award you, including reasonable
attorney’s fees and expenses. For purposes of this Paragraph only, if you
properly request a prearbitration settlement offer and we or the Related Third
Party do not make one, the Parties shall treat the last prearbitration
settlement offer as being for zero dollars. Any request for a prearbitration
settlement offer must be made in writing and submitted to the below listed:
Lyon Living
c/o Michael Barmettler
4901 Birch Street
Newport Beach, CA 92660
To be valid, a request must include
your name, address, account number or social security number, and a clear and
accurate description of your claims and any supporting facts. The Company or
the Related Third Party shall have fourteen (14) days to respond to your
request. If you file arbitration or court proceedings before the fourteen (14)
day period runs, you will forfeit any rights and benefits provided by this
paragraph (“PreArbitration Settlement Offer and Minimum Recovery Provision”)
and the remainder of the Arbitration Provision will remain in full force and
effect. Although the Company and Related Third Parties are entitled to make
more than one prearbitration settlement offer, if only one offer is made that
offer shall be considered the last offer for purposes of this Paragraph
(“PreArbitration Settlement Offer and Minimum Recovery Provision”) regardless
of whether you make additional requests for prearbitration settlement offers.
This Paragraph (“PreArbitration Settlement Offer and Minimum Recovery
Provision”) shall only apply to a damages award you obtain based on the same or
materially similar claims and supporting facts as those set forth in your
request for a prearbitration settlement offer.
Beneficiaries, Obligors, and Survival of the Arbitration
Provision
This Arbitration Provision will
survive: (1) termination of these Terms of Use; (2)
the bankruptcy of any Party or Related Third Party; and (3) any transfer, sale, or assignment of this Agreement
and any transfer, sale, or assignment of any amounts owed to any person or
entity.
This Arbitration Provision benefits and
is binding upon you, your respective heirs, successors, assigns, and designees
and any cosigner, coobligor, guarantor, guardian, personal representative, or
bankruptcy trustee, and their heirs, successors, assigns, and designees. It
also benefits and is binding upon the Company and its successors, assigns,
designees, and all other Related Third Parties and their successors, assigns,
and designees. The Arbitration Provision continues in full force and effect
even if your obligations have been paid or discharged through bankruptcy. The
Arbitration Provision survives any termination, amendment, expiration, or
performance of any transaction between you and the Company or you and a Related
Third Party and continues in full force and effect unless you and the Company
otherwise agree in writing.
If any final, binding, and
nonappealable judgment finds that this Arbitration Provision cannot be
enforced without permitting class arbitration or consolidated proceedings, the
entirety of the Arbitration Provision shall be null and void and neither you
nor the Company nor Related Third Parties shall be entitled to arbitrate claims
or Disputes. Any judgment finding that this Arbitration Provision cannot be
enforced without permitting class arbitration or consolidated proceedings shall
not be binding in any proceedings involving persons or entities who were not
parties to that judgment.
The decision of a party or Related
Third Party not to demand compliance with any portion of this Arbitration
Provision shall not waive the Party’s right to demand compliance with any other
portion(s) of this Arbitration Provision.
Confidentiality of Arbitration Proceedings
Any arbitration proceeding, including
any hearings and any documents filed or exchanged, shall remain private and
confidential. Neither the arbitrator nor the parties to an arbitration
proceeding shall disclose the contents of a proceeding to any third parties
except Related Third Parties and the parties’ and Related Third Parties’ respective
counsel, witnesses, advisors, and family members provided first that any
parties to which disclosures may be made shall be notified of, and agree to,
the confidentiality obligations of this paragraph. That notwithstanding, the
confidentiality obligations of this Paragraph shall not apply to proper
disclosures made in response to a valid subpoena or other judicial process, as
required by law, as strictly necessary to enforce or effectuate this
Arbitration Provision or an arbitration award or ruling, or as appropriate in
the ordinary course of business. Before any disclosure is made, the party
contemplating a disclosure shall take reasonable steps to notify the other
party that a disclosure has been contemplated and shall give, in good faith,
the nondisclosing party the opportunity to address the contemplated disclosure
with the contemplating party. This Paragraph shall not limit the right or
ability of you or the Company or Related Third Parties to request additional
confidentiality protections regarding certain communications or documents made
or exchanged during the course of a Dispute.
Judicial Review
The parties to an arbitration award
shall have, in addition to the grounds referred to in the Federal Arbitration
Act for vacating, modifying, or correcting an award, the right to immediate
judicial review of any ruling or decision by the arbitrator to order or conduct
arbitration proceedings on a nonbilateral basis (e.g., class arbitration or
proceedings consolidated with those of a third party) to determine if, among
other grounds for review or relief, such ruling or decision exceeds the
arbitrator’s authority under this Arbitration Provision. If any final, binding,
and nonappealable judgment finds that a ruling or decision by the arbitrator
to order or conduct arbitration on a nonbilateral basis is enforceable under
this Arbitration Provision, the entirety of this Arbitration Provision shall be
null and void and neither you nor the Company nor Related Third Parties shall
be entitled to arbitrate claims or Disputes. Any arbitration proceeding shall
be stayed while judicial review is pending.
Opt Out Process
You may choose to opt out of the
Arbitration Provision, but only by notifying the Company in writing by letter
postmarked within thirty (30) calendar days of the date of you first use the
Website. It is not sufficient to telephone or email the Company; You must give
written notice by letter. You must send your written notice to the
Lyon Living
c/o Michael Barmettler
4901 Birch Street
Newport Beach, CA 92660
Your notice must include your name,
address, and account number or social security, and a statement that you wish
to opt out of this Arbitration Provision. To be effective, your notice must be
signed by you. If you choose to opt out
your choice will apply only to this Arbitration Provision and this Agreement,
as it may be or may have been amended.
Interpreting this Arbitration Provision
The purpose of this Arbitration
Provision is to give binding effect to the parties’ intent to resolve all
claims and Disputes through binding bilateral arbitration. Any ambiguities in
this Arbitration Provision should be construed in favor of resolving all claims
and Disputes exclusively through binding bilateral arbitration (with the caveat
that this Arbitration Provision also expressly permits the parties and Related
Third Parties to seek resolution of claims and Disputes in small claims court
in certain instances). In addition, the terms “and”, “or”, and “and/or” should
be construed conjunctively or disjunctively or both conjunctively and
disjunctively, as appropriate, so as to promote the parties’ intent to resolve
all claims and Disputes exclusively through binding bilateral arbitration.
Finally, both the singular and plural of certain terms, including “claim” and
“Dispute”, appear in this Arbitration Provision. The decision to use the
singular or the plural in any particular instance is aimed at promoting
readability. Nothing should be inferred from the use of the singular or the
plural in any particular instance that would be inconsistent with the parties’
intent to resolve all claims and Disputes exclusively through binding bilateral
arbitration.