Terms of Service
Last revised on: June 13, 2013
These Terms of Service (“Terms”) govern your use of the eFamily website located at www.efamily.com (“Site”) and any services and software offered by eFamily (“Services”). eFamily.com, LLC. (“eFamily,” “we,” or “us”) provides the Site and Services. “You” refers to you as a user of the Site or Services.
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THESE TERMS AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THESE TERMS IF YOU ARE NOT AT LEAST 13 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SITE OR SERVICES.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. Additional Terms
Some of our Services have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using the applicable Services, you agree to the Additional Terms.
2. Family Sites and Accounts
(a) A user (“Originator”) may create a “Family Site” and invite other users (e.g., family members) to join the Family Site by following the instructions on the Site. The Originator and each invited user that joins (each a, “Family Site Member”), may share photos, videos, messages, and other content within the Family Site. Each Family Site Member may invite additional users to join the Family Site and become Family Site Members. Only the Originator may delete a Family Site Member from a Family Site.
(b) Account Creation. In order to use certain features of the Site or Service (e.g., to become a Family Site Member), you must register for an account with eFamily (“Account”) and provide certain information about yourself as prompted by the registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. eFamily may suspend or terminate your Account in accordance with Section 9.
(c) Account Responsibilities. You are responsible for maintaining the confidentiality of your Account information, including your username and password. You are responsible for all activities that occur under your Account and you agree to notify eFamily immediately of any unauthorized access or use of your Account. eFamily is not responsible or liable for any damage or loss related to any unauthorized access or use of your Account.
3. Payment Terms
The following terms apply to the Originator’s purchase of a subscription to create and use a Family Site (“Subscription”).
(a) Free Trials and Other Promotions. Any free trial or other promotion must be used within the specified time of the trial. At the end of the trial period, your use of the Subscription will expire and any further use of the Subscription is prohibited unless you pay the applicable Subscription fee.
(b) Subscription. The current Subscription fee for a Family Site is $5/month or $50/year (depending on whether you ordered a monthly or annual Subscription). The renewal charge will be equal to the then-current Subscription fee. eFamily reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice, which notice may be provided by e-mail or to your Account. Your Subscription automatically renews monthly or annually (depending on whether you ordered a monthly or annual Subscription) until you cancel the Subscription by following the instructions in your Account or emailing us at firstname.lastname@example.org with the subject line “CANCEL SUBSCRIPTION”. Subscriptions are paid for in advance, all payment obligations are non-cancelable and all amounts paid are nonrefundable (even if you cancel prior to expiration of the Subscription term). If you are paying via credit card, eFamily will automatically bill your credit card submitted for all amounts due on the date you ordered the Subscription, and each month or year thereafter (depending on whether you ordered a monthly or annual Subscription), until you cancel the Subscription as described above. You hereby authorize eFamily to bill your credit card as described above.
(c) Other Payment Terms. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. All payments must be made in U.S. dollars. eFamily shall be entitled to withhold performance and discontinue the Subscription until all amounts due are paid in full. eFamily's fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States taxes based solely on eFamily's income. You agree to provide eFamily with complete and accurate billing and contact information. You agree to update this information within thirty (30) days of any change to it. If the billing and/or contact information you have provided is false or fraudulent, eFamily may terminate your Subscription in addition to any other legal remedies.
(a) License. Subject to these Terms, eFamily grants you a non-transferable, non-exclusive, license to use the Site and Services (excluding the Family Site) for your personal, noncommercial use. Subject to these Terms, and only during the period of the Originator’s Subscription, eFamily grants you a non-transferable, non-exclusive, license to use the Family Site for your personal, noncommercial use. Subject to these Terms, eFamily grants you a non-transferable, non-exclusive, license to install and use the software eFamily makes available for mobile devices (“App”), in executable object code format only, solely on your own handheld mobile device and for your personal, noncommercial use. As used in these Terms, the term “Services” includes the App.
(b) Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of these Terms. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof.
(c) Modification. eFamily reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that eFamily will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
(d) Ownership. Other than User Content, we own or license all right, title, and interest, including all copyrights, patents, trade marks, and trade secrets, in and to (a) the Site and Services, including all software, text, media, and other content available on the Site and Services (“eFamily Content”); and (b) eFamily's trademarks, trade dress, logos, and brand elements (“Marks”). You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. The Site and Services, eFamily Content, and Marks are all protected under U.S. and international laws. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. eFamily and its suppliers reserve all rights not granted in these Terms.
(e) App Platforms. You acknowledge and agree that the availability of the App is dependent on the third party app platform from which you received the App, e.g., the Apple iPhone store (“App Platform”). You acknowledge that these Terms are between you and eFamily and not with the App Platform. eFamily, not the App Platform, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Platform in connection with the App. Each App Platform may have its own terms and conditions to which you must agree before downloading the App from it. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable agreements, terms and conditions of use/service, and other policies of the applicable App Platform. You acknowledge that the App Platform (and its subsidiaries) is a third party beneficiary of these Terms and will have the right to enforce these Terms.
5. Acceptable Use Policy of the Site and Services
You are solely responsible for your use of the Site and Services (including your User Content, as defined below), and for any use of the Site or Services made using your Account. At eFamily, our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to eFamily. When you use the Site or Services, you may not engage in any of the following (the “Acceptable Use Policy”):
- violate any law, regulation, or restriction imposed by a third party;
- violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
- post or share anything that is illegal, abusive, harassing, tortious, fraudulent, defamatory, libelous, harmful to reputation, harmful to minors, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
- send unsolicited or unauthorized advertising or commercial communications, such as spam;
- engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site or Services;
- transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
- stalk, harass, or harm another individual;
- impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
- use any means to scrape or crawl any Web pages contained in the Site (although eFamily does allow operators of public search engines to use spiders to index materials from the Site for the sole purpose of creating publicly available searchable indices of the materials, and eFamily reserves the right to revoke these exceptions either generally or in specific cases)
- use automated methods to use or access the Site or Services;
- attempt to circumvent any technological measure implemented by eFamily or any of eFamily's providers or any other third party (including another user) to protect the Site or Services;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Site or Services; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
6. User Content
(a) User Content. You own your photos and other information and content you post or share using the Site or Services (“User Content”). You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by eFamily. Because you alone are responsible for your User Content (and not eFamily), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy.
(b) License. You give eFamily permission to use your User Content as follows: you grant to eFamily a non-exclusive, fully paid up and royalty-free, worldwide, perpetual and irrevocable license (with the right to sublicense) to reproduce, modify, distribute, display, perform, and otherwise use your User Content solely in connection with providing the Site and Services to you and other Users. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. Our license to your User Content is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights anywhere in the world. Finally, our license is perpetual and irrevocable, meaning that our license lasts for an indefinite period of time, so long as the User Content has not been removed by the User.
You promise that:
- you own all rights to your User Content or, alternatively, that you have the right to give eFamily the rights described above; and
- you have paid and will pay in full any fees or other payments that may be related to the use of your User Content.
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion. We may refuse to transmit or remove User Content from the Site or Services for any reason in our sole discretion. eFamily is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
(c) Feedback. If you provide eFamily any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to eFamily all rights in the Feedback and agree that eFamily shall have the right to use such Feedback and related information in any manner it deems appropriate. eFamily will treat any Feedback you provide to eFamily as non-confidential and non-proprietary. You agree that you will not submit to eFamily any information or ideas that you consider to be confidential or proprietary.
7. Copyright and Intellectual Property Policy
(a) Notice of Copyright or Intellectual Property Infringement. We respect the intellectual property rights of others. Please notify us in writing, by email or mail to our designated agent listed below, if you believe that a user of the Site or Services has infringed your intellectual property rights, pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act (DMCA).
To be effective the notification must include:
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- identification of the claimed infringing material and information reasonably sufficient to permit eFamily to locate the material on the Site or Services;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
- a 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;
- a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- your physical or electronic signature.
You acknowledge and agree that upon receipt and notice of a claim of infringement, we may immediately remove the identified materials of your User Content from the Site and Services without liability.
(b) Counter-Notice by Accused User. If we have taken down your materials due to suspicion of copyright infringement, you may dispute the alleged infringement by sending a written communication by email or mail to our designated agent below.
That written communication must include the following:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which such address is located, or if your address is outside of the United States, the Federal District Court for the Northern District of California, and that you will accept service of process from the person who provided notification of copyright infringement or an agent of such person.
Please send all notices under the above copyright infringement policies by email to the following individual, designated as eFamily's agent for receipt of notifications of claimed infringement:
(c) Repeat Infringers. Your Account will be terminated if, in our discretion, you are determined to be a repeat infringer. Repeat infringers are users who have been the subject of more than one valid takedown request that has not been successfully rebutted.
8. Third Party Sites and Other Users
(b) Other Users. Each Site user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. In addition, each Family Site Member is solely responsible for his/her actions, including any and all use and disclosure of your User Content and any addition or removal of a Family Site Member. Your interactions with other Site or Service users are solely between you and such user. You agree that eFamily will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
(c) Release. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users (including Family Site Members) or third-party websites or online services. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Subject to this Section, these Terms will remain in full force and effect while you use the Site or Services. We reserve the right not to provide the Site or Services to any person. We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion (provided that if we terminate a Subscription for convenience, we will provide the Originator a pro-rata refund of the Subscription fee for the remainder of the Subscription term). If you violate any of these Terms, or these Terms otherwise terminate, your permission to use the Site and Services automatically terminates. You understand that any termination of your Account involves deletion of your User Content associated therewith from our live databases. eFamily will not have any liability whatsoever to you for any termination of these Terms, including for termination of your Account or deletion of your User Content. Even after these Terms are terminated, the following provisions of the Terms will remain in effect: Sections 4(b)-(e) and 5-16.
YOU USE THE SITE AND SERVICES AT YOUR OWN RISK. THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EFAMILY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, COMPLETE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EFAMILY OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.
11. Limitations on Our Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EFAMILY OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THE SITE OR SERVICES OR THESE TERMS, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR AFFILIATES’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS OR THE SITE OR SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID COMPANY IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT EFAMILY MAY NOT, AS A MATTER OF APPLICABLE LAW, LIMIT ITS LIABILITIES, THE EXTENT OF EFAMILY'S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
12. Dispute Resolution
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
(a) Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and eFamily and our employees, agents, successors, or assigns, regarding or relating to these the Site, Services or these Terms, shall exclusively be settled through binding and confidential arbitration.
(b) Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
(e) Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Mateo County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Mateo County, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Mateo County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of subparts (1) and (2) in the paragraph 12(d) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Terms, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 12 (d) (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Mateo County, California.
(g) Notwithstanding any provision in these Terms to the contrary, if we seek to terminate the Dispute Resolution section as included in the Terms, any such termination shall not be effective until 30 days after the version of the Terms not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided eFamily with written notice prior to the date of termination.
(h) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.
(i) Any and all controversies, disputes, demands, counts, claims, or causes of action between you and eFamily and our employees, agents, successors, or assigns, regarding or relating to these the Site, Services or these Terms, shall exclusively be governed by the internal laws of the State of California, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.
You agree to indemnify (and, at eFamily's option, defend) eFamily and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, (i) your User Content, (ii) your use of the Site or Services, (iii) your violation of any applicable laws and regulations, or (iv) any actual or alleged breach of these Terms by you. eFamily reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. If we do assume the defense of such a matter, you will reasonably cooperate with eFamily in such defense. You agree not to settle any matter without the prior written consent of eFamily. eFamily will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
14. Other Provisions
(a) Under no circumstances will eFamily be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond its reasonable control. You acknowledge and agree that eFamily will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
(b) These Terms constitute the entire agreement between you and us regarding the use of the Site and Services and supersedes all prior discussions between the parties with respect to such subject matter. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of these Terms is found to be unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity or enforceability of any remaining provisions.
(c) The failure of eFamily to enforce any right or provision of these Terms will not prevent eFamily from enforcing such right or provision in the future.
(d) These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without eFamily's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
(e) The communications between you and eFamily use electronic means, whether you visit the Site or Services or send eFamily e-mails, or whether eFamily posts notices on the Site or Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from eFamily in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that eFamily 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. Where eFamily requires that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/permitted by these Terms, Our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to eFamily at the contact information set forth below.
(f) 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.
15. Changes to these Terms
From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Site. Those changes will go into effect thirty (30) days after posting notice of such changes. By continuing to use the Site or Services, you agree to the revised Terms.
PLEASE PRINT A COPY OF THESE TERMS FOR YOU RECORDS AND PLEASE CHECK THE SITE FREQUENTLY FOR ANY CHANGES TO THESE TERMS.
16. Contact Information
Address: 7 Launch Way. Ste. 520, Fishers, IN 46038
17. Apple App Platform Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using an App from the Apple App Platform. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 17, the more restrictive or conflicting terms and conditions in this Section 17 apply, but solely with respect to Apps from the Apple App Platform.
(a) Acknowledgement: eFamily and you acknowledge that these Terms are concluded between eFamily and you only, and not with Apple, and eFamily, not Apple, is solely responsible for Apps and the content thereof. To the extent these Terms provides for usage rules for Apps that are less restrictive than the Usage Rules set forth for Apps in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
(b) Scope of License: The license granted to you for the App is limited to a non-transferable license to use the App on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
(c) Maintenance and Support: eFamily is solely responsible for providing any maintenance and support services with respect to the App, as specified in these Terms (if any), or as required under applicable law. eFamily and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
(d) Warranty: eFamily is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be eFamily's sole responsibility.
(e) Product Claims: eFamily and you acknowledge that eFamily, not Apple, is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. These Terms do not limit eFamily's liability to you beyond what is permitted by applicable law.
(f) Intellectual Property Rights: eFamily and you acknowledge that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, eFamily, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(g) Legal Compliance: You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h) Developer Name and Address: eFamily's contact information for any end-user questions, complaints or claims with respect to the App is set forth in Section 16.
(i) Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using the App.
(j) Third Party Beneficiary: eFamily and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.