Effective Date March 18, 2014
Please review these Terms carefully before using the Services because they affect your rights. By using any of the Services, you accept these Terms and agree to be legally bound by them.
Certain Services are provided to you free-of-charge, while other Services like subscription(s) (“Subscription”), require payment before you can access them. If you choose to purchase a Subscription, please review the provisions of Section 8, in addition to all of the other provisions of these Terms. If you do not purchase a Subscription, then Section 8 does not apply to you. References to Services throughout these Terms include Subscriptions.
Additional terms may apply to your use of certain Services. I will provide these terms to you or post them on the Services to which they apply, and they are incorporated by reference into these Terms. If there is a conflict between these Terms and any additional terms that apply to a particular Service, the additional terms will control.
Sweepstakes, contests, and promotions on the Services may also have additional rules and eligibility requirements, such as certain age or geographic area restrictions. You are responsible for complying with these rules and requirements. Ms. Gardenia’s Speech Room does not market to or allow any persons under thirteen years old to participate in any Sweepstakes, Contests, and Promotions hosted by Ms. Gardenia’s Speech Room.
3. Registration and Access Controls
Information is requested from you when you register for a user account, you must provide us with accurate and complete information and must update the information when it changes. You may not access any age-restricted Services unless you are above the required age. In no case are persons under the age of thirteen permitted to use the Services.
You are responsible for maintaining the confidentiality of your user account login name(s) and password(s), and must not permit use of your account or account information by anyone other than yourself. You accept responsibility for all activities, charges, and damages that occur under your account, including use of your account by anyone you allow access by sharing your account information, and unauthorized use of your account. If you have reason to believe that someone is using your account without your permission, you should contact us immediately. We are not responsible for any loss or damage resulting from unauthorized use.
4. Intellectual Property; License
The audio and video materials, photographs, text, graphics, logos, layouts, designs, interfaces, software, data and other content associated with the Services, including video materials, photographs, text, graphics, logos from associated contributors (“Content”) are protected by intellectual property and other laws in the U.S. and in other countries. You must comply with all such laws and applicable copyright, trademark or other legal notices or restrictions. You shall not remove or alter any copyright, trademark, or other legal notices marked on the Content. Ms. Gardenia’s Speech Room retains all rights, titles, and interest in and to the Services and the Content. No transfer of ownership to any portion of the Content shall be made as a result of any access you are granted. Except as specifically provided below, I reserve all rights to the Services and Content.
You are only permitted to access and view the Content for personal, non-commercial purposes in accordance with these Terms, and may not build a business or other enterprise utilizing any of the Content, whether for profit or not. Except as provided in Section 4(a) or otherwise expressly authorized by me in writing, you may not either directly or through the use of any software, device, internet site, web-based service or other means download, stream capture, store in a database, archive or otherwise copy any part of the Services or Content; upload, sell, rent, lease, lend, broadcast, transmit or otherwise disseminate, distribute, display any part of the Services or Content; license or sublicense any part of the Services or Content; or in any way exploit any part of the Services or Content. In addition, except as provided in Section 4(a) or otherwise expressly authorized by me in writing, you are strictly prohibited from modifying Content; creating, distributing any significant portion of the Content; or otherwise creating derivative works or materials that otherwise are derived from or based in any way on the Content. This prohibition from creating derivative works is applicable even if you intend to give away the derivative material free of charge.
a. Viral Distribution
I may expressly authorize you to redistribute certain Content on a personal, non-commercial basis. I will identify the Content that you are authorized to redistribute and describe ways you may redistribute it (such as via email, blogs, or embedded players, sharing through social media sites, i.e. Facebook©, Twitter©, LinkedIn©, Google +©, YouTube©, Pinterest©, Instagram©, Tumblr©, or by producing Mash-Ups). I may revoke this authorization at any time. If you redistribute such Content, you must be able to edit or delete such publicly posted Content and you must edit or delete it promptly upon our request. If authorization is granted via website controls or if we authorize, in writing, the use or sharing of Content , you may share Content, post Content, and render Content locally, provided you do not display Content on any website or other location that (i) contains or hosts content that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, infringing, threatening, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, or that I deem, in my sole discretion, to be otherwise objectionable or (ii) links to infringing or unauthorized content, or any content described in (i). As determined by me in my sole discretion, I reserve the right to prevent rendering, displaying, embedding or sharing Content to any website or other location that I find inappropriate or otherwise objectionable as determined by me in my sole discretion.
b. Commercial Licenses
You must obtain our written permission for commercial use of the Content or the Services. If you wish to license Content from the Services, please contact me.
5. Legal Complaints
Ms. Gardenia’s Speech Room respects intellectual property rights. If you believe that Content on the Services infringes your copyright, please follow our procedures for making a Copyright Infringement Claim.
6. User Submissions
Some of the Services may allow you to submit or transmit audio, video, text, or other materials, including so-called “user generated content”, “reviews”, “comments” and “feedback” (collectively, “User Submissions”) to or through the Services. When you provide User Submissions, you grant to Ms. Gardenia’s Speech Room and its affiliates and partners a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, fully sublicenseable license to use, reproduce, archive, edit, translate, create derivative works of, make available, distribute, sell, display, perform, transmit, broadcast and in any other way exploit those User Submissions, and any names, voices, likenesses and other identifying information of persons that is part of those User Submissions, in any form, media, software, or technology of any kind now known or developed in the future, including, without limitation, for developing, manufacturing, and marketing products. You hereby waive any moral rights you may have in your User Submissions.
We respect your ownership of User Submissions. If you owned a User Submission before providing it to us, you will continue owning it after providing it to us, subject to any rights granted in these Terms and any access granted to others. Please note that if you delete a User Submission from the Services:
• The User Submission may still exist in our backup copies, which are not publicly available;
• If your User Submission was shared with third parties, those third parties may have retained copies of your User Submissions, and neither we nor our affiliates have any responsibility for any uses of your User Submission that they might make;
• We retain the license specified above. Thus, for example, if we or one of our sublicensees obtained your user Submission for use in creating a derivative work before you deleted it, we or our sublicensee would remain free to complete the creation of that derivative work and thereafter exploit that derivative work for all purposes and at all times.
We may refuse or remove a User Submission without notice to you. However, we have no obligation to monitor User Submissions, and you agree that neither we nor our affiliates will be liable for User Submissions or any loss or damage resulting from User Submissions.
You bear all responsibility for your User Submissions. You represent and warrant that you have all rights necessary to grant to Ms. Gardenia’s Speech Room the license above and that your User Submissions do not violate Section 10.
7. Third Party Content
8. Subscriptions and Billing
This Section 8 contains additional provisions that apply if you purchase a Subscription.
8.1 Subscription Account Information – You can access and edit specific details regarding your Subscription to Ms. Gardenia’s Speech Room, including information concerning your credit card or other available payment method (“Payment Method”), on the msgardneia.com website at any time by visiting your account page when you are logged in.
8.2 Age Limitations – Individuals under the age of 18 may purchase a Subscription only with the involvement of a parent or legal guardian. You acknowledge that by using the Subscription, you may be exposed to Content that you find objectionable, and if older than 18 it is your sole responsibility, if under 18, the responsibility of the parent or legal guardian involved in your access to determine whether the Content, onsite and/or included in the Subscription is suitable for you. Although, Ms. Gardenia’s Speech room will never intentionally post anything that a reasonable person would find inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, infringing, threatening, sexually explicit, or racist, or post any material that is known to be false, illegal or that promotes violence, racial hatred, or terrorism, some Content such as User Submissions may not be suitable for people under the age of 18. User Submissions are not monitored. However, if you read or see material posted or find linked material that falls into one of the above categories and make us aware of it, the Content or User Submission will be reviewed and appropriate action will be taken. See Section 6, We may refuse or remove a User Submission without notice to you (the end user or individual responsible for posting said material).
8.3 Device Requirements – To see if the subscription content is available and or accessible for your device, I advise you to sign up for the available free trial. Due to nature of the Content and the varying number of available devices, Ms. Gardenia’s Speech Room is not responsible for making content available for use on any specific device. Although Content is accessible and/or viewable on the majority of popular devices, to prevent issues related to your device, please evaluate the content on your device(s) during the free trial prior to purchasing any Subscription. Ms. Gardenia’s Speech Room will not provide refunds based on Content accessibility related to a device.
8.4 Payment – By providing Payment Method information for your Subscription, you are agreeing to pay a monthly Subscription fee or a yearly subscription fee and any applicable taxes and service fees (“Fees”) in connection with your use of the Subscription. Any Fees will be charged to your Payment Method automatically at the beginning of your Subscription (or, as described in Section 8.9, at the end of your Trial Period, where applicable), and again (for renewal) on the last calendar day of subsequent months (for monthly subscription) or years (for yearly subscription) unless you cancel your Subscription or your account is suspended or terminated pursuant to these Terms. The Fees charged to your Payment Method may vary from month to month or year to year due to changes in your Subscription plan or applicable taxes, and you authorize Ms. Gardenia’s Speech Room to charge your Payment Method for these amounts. Ms. Gardenia’s Speech Room reserves the right to change the pricing of Subscription at any time. In the event of a price change, Ms. Gardenia’s Speech Room will post the new pricing on your account page and attempt to notify you in advance by sending an email to the address you have registered for your account. If you do not wish to accept a price change, you may cancel your Subscription as described in Section 8.6. If there are any discrepancies in billing, you hereby waive your right to dispute such discrepancies if you do not notify Ms. Gardenia’s Speech Room within sixty (60) days after they first appear on an account statement. YOU MUST PROVIDE YOUR OWN ACCESS TO THE INTERNET AND PAY ANY TELEPHONE SERVICE, COMMUNICATION, USE, ACCESS AND CONNECTION FEES ASSOCIATED WITH SUCH GENERAL INTERNET ACCESS. PLEASE CHECK WITH YOUR INTERNET PROVIDER FOR INFORMATION ON POSSIBLE INTERNET DATA USAGE CHARGES.
8.5 No Refunds – All FEES ARE NON-REFUNDABLE. As described further in Section 8.6, even if you cancel your Subscription during a monthly Subscription period or yearly Subscription period, you will not receive a refund for any portion of the Fees for the remainder of that Subscription period.
8.7 Unpaid Amounts – If you fail to pay any Fees when due, as a result of expiration of your Payment Method, insufficient funds, or otherwise, (1) you will remain liable for all such amounts, as well as any costs that Ms. Gardenia’s Speech Room incurs in collecting any amounts you fail to pay in connection with your Subscription, including attorney and collections fees, (2) you authorize Ms. Gardenia’s Speech Room to continue charging your Payment Method, as your Payment Method information may be updated as described in Section 8.1, and (3) We may suspend or terminate your Subscription.
8.8 Promo Codes – From time to time, promotional codes may be available, including those provided as part of a third party promotion. Promotional codes may be redeemed as described in the specifics of the promotion. Promotional codes can only be used once, cannot be redeemed for cash, and may be combined with other offers, subject to certain restrictions as determined by Ms. Gardenia’s Speech Room in its sole discretion. If you received a promotional code through an offer by a third party, additional conditions may apply.
8.9 Trial Period – Ms. Gardenia’s Speech room may provide a limited free trial period (“Trial Period”) to new users and certain former subscribers at its sole discretion, but is under no obligation to do so, and Trial Periods may not be available at all times. Ms. Gardenia’s Speech Room reserves the right, in its absolute discretion, to determine your eligibility for a Trial Period. The specific terms of the Trial Period will be stated in the marketing material describing the particular Trial Period. If Ms. Gardenia’s Speech Room provides you with a Trial Period, you must provide valid Payment Method information to Ms. Gardenia’s Speech Room in order participate in the Trial Period offering. Ms. Gardenia’s Speech Room will not charge you in connection with the Trial Period. If you do not cancel your Subscription by the last “Day” of your Trial Period, you authorize Ms. Gardenia’s Speech Room to begin your paying Subscription and automatically charge your Payment Method for your first paid monthly or yearly Subscription period at the end of your Trial Period. MS. GARDENIA’S SPEECH ROOM WILL NOT SEND YOU NOTICE THAT YOUR TRIAL PERIOD HAS ENDED OR THAT YOUR PAYING SUBSCRIPTION HAS BEGUN. IF YOU WISH TO AVOID CHARGES TO YOUR PAYMENT METHOD, YOU MUST CANCEL THE TRIAL PERIOD PRIOR TO THE LAST “DAY” OF YOUR TRIAL PERIOD. A “Day” for purposes of these Terms begins at the time you start your Subscription (i.e., complete the signup process), and ends 24 hours later. For example, if you complete your registration at 3:00 p.m. on a Monday in your time zone and your Trial Period is 2 days, you have until 3:00 p.m. on Wednesday in your time zone to cancel your Subscription before your paying Subscription will begin. You may only have one Trial Period before you must begin paying for your Subscription. If you exceed this limit, Ms. Gardenia’s Speech Room may charge your Payment Method for any Trial Period after the first, or suspend your Subscription, in its sole discretion.
8.10 Broadcast and Territory Restrictions – You may only use your Subscription and it’s Content for your own personal, non-commercial purposes. Certain features and Content may only be available to users in certain locations, during certain periods, and on certain devices, and the availability of certain features and Content may change over time. In the case of geographic limitations, your location may not be identified accurately by the technology used for your Subscription, so you may be unable to access certain features and Content even if you are located in an area in which we intend to provide access. You consent to Ms. Gardenia’s Speech Room and its third party providers determining your location for purposes of providing Content. Ms. Gardenia’s Speech Room will not be liable to you for any blackouts, location-based limitations, device-based limitations, content-viewing windows, changes in Ms. Gardenia’s Speech Room affiliate providers, availability of Content, or other restrictions or limitations in connection with your Subscription or the Content.
8.11 Quality of Service – The quality of the display and availability to download the Content and/or stream Content may vary from device to device, and may be affected by a variety of factors, including your location and the speed of your Internet connection. The time it takes to begin watching Content will also vary based on a number of factors, including your location, available bandwidth at the time and the configuration of your device. The time it takes to download Content will also vary based on a number of factors, including your location, available bandwidth at the time and the configuration of your device. Ms. Gardenia’s Speech Room makes no representations or warranties about the quality of your watching experience or the speed at which can watch, view or download Content on your device.
8.12 Updates and Testing – Ms. Gardenia’s Speech Room reserves the right to update and change Subscription details, including its features and the selection of Content available in Subscriptions, at any time. In addition, Ms. Gardenia’s Speech Room reserves the right to test various aspects of Subscriptions. Ms. Gardenia’s Speech Room reserves the right to, and by using our Services you agree that I may, include you in or exclude you from these tests without notice.
8.13 Subscription Specific Emails – As part of your Subscription, Ms. Gardenia’s Speech Room may send you emails regarding the Content or Subscription from time to time. You agree that Ms. Gardenia’s Speech Room may send you these types of emails to the email address that you provide. Because these emails are necessary for you to receive your Subscription, you agree that you will receive these emails even if you have opted out of receiving other emails from Ms. Gardenia’s Speech Room. If you do not want to receive these types of emails, you may cancel your Subscription at any time as provided in Section 8.6.
9. Other Fee-Based Services
If you accept fee-based Services other than a/the Subscription, you agree to the additional terms governing all such purchases as provided to you or posted on the Services to which they apply, including all requirements to pay applicable fees and taxes. Except as otherwise provided in such additional terms, the provisions of this Section 9 apply to such fee-based Services.
Unless otherwise stated, all fees and charges are non-refundable, including for unused portions of canceled Subscriptions or other fee-based services. We do not provide price protection or refunds in the event of a price drop or promotional offering.
Ms. Gardenia’s Speech Room reserves the right to change the pricing of all Services at any time. In the event of a price change, Ms. Gardenia’s Speech Room will post the new pricing on the relevant Service and attempt to notify you by sending an email to the address you have registered.
We may offer trial Subscriptions to paid Services for free or at special discounted prices. Unless otherwise stated, these trial Subscriptions will automatically become paying Subscriptions at the current Subscription rate if you do not cancel before the end of the trial period.
10. Acceptable Use
Without limiting any other provision in these Terms, you agree not to do the following, or assist others to do the following:
• Access the Services using any interface other than ours;
• Maintain any link to the Services that I ask you to remove, in our sole discretion;
• Frame the Services or Content, make the Services or Content available via in-line links, otherwise display the Services or Content in connection with an unauthorized logo or mark, or do anything that could falsely suggest a relationship between the Ms. Gardenia’s Speech Room or its affiliates and any third party or potentially deprive us of revenue (including, without limitation, revenue from advertising, branding, or promotional activities);
• Threaten, defame, stalk, abuse, or harass other persons or engage in illegal activities, or encourage conduct that would constitute a criminal offense or give rise to civil liability;
• Transmit any material that is inappropriate, profane, vulgar, offensive, false, disparaging, defamatory, obscene, illegal, sexually explicit, racist, that promotes violence, racial hatred, or terrorism, or that I deem, in our sole discretion, to be otherwise objectionable;
• Violate any person’s or entity’s legal rights (including, without limitation, intellectual property, privacy, and publicity rights), transmit material that violates or circumvents such rights, or remove or alter intellectual property or other legal notices;
• Transmit files that contain viruses, spyware, adware, or other harmful code;
• Advertise or promote goods or services without our permission (including, without limitation, by sending unsolicited email);
• Remove, modify, disable, block or otherwise impair any advertising in connection with the Services;
• Interfere with others using the Services or otherwise disrupt the Services;
• Disassemble, decompile or otherwise reverse engineer any software or other technology included in the Content or used to provide the Services;
• Transmit, collect, or access personally identifiable information about other users without the consent of those users and Ms. Gardenia’s Speech Room;
• Engage in unauthorized spidering, “scraping,” data mining or harvesting of Content, or use any other unauthorized automated means to gather data from or about the Services;
• Impersonate any person or entity or otherwise misrepresent your affiliation or the origin of materials you transmit;
• Remove, avoid, interfere with, or otherwise circumvent any access control measures for the Services or Content, including password-protected areas and geo-filtering mechanisms, or any digital rights management measures used in connection with Content; or
• Access any portion of the Services that I have not authorized you to access (including password-protected areas), link to password-protected areas, attempt to access or use another user’s account or information or allow anyone else to use your account or access credentials.
IF YOU VIOLATE THIS SECTION 10, MS. GARDENIA’S SPEECH ROOM MAY IMMEDIATELY TERMINATE YOUR ACCESS TO THE SERVICES, AND TAKE ANY OTHER ACTIONS OR SEEK ANY REMEDIES PERMITTED BY LAW.
11. Access to Services and Accounts
We may take any of the following actions in our sole discretion at any time, and without giving you prior notice:
• Change or discontinue the Services;
• Change how we offer and operate Services (e.g., to begin charging a fee to access features or Content that we previously made available without charge);
• Remove Content from the Services;
• Restrict, suspend or terminate your access to one or more Services or features thereof; and
• Deactivate your accounts and delete all related information and files in your accounts.
We will not be liable to you or any third party for taking any of these actions and I will not be limited to the remedies above if you violate these Terms. If Ms. Gardenia’s Speech Room terminates your access to any of the Services, you must immediately stop using such Service. However, if you have paid for a Subscription or another paid Service, and I discontinue the Service before the end of a paid Subscription period, or I terminate your account before the end of a paid Subscription period for reasons other than your breach of these Terms, I will refund a prorated portion of the applicable Subscription fee corresponding to the portion of the paid Subscription period for which our action caused you not to have access to the relevant Service. If Ms. Gardenia’s Speech Room terminates your Subscription or access to another paid Service because you breached these Terms, you will not be entitled to any refund.
12. Unsolicited Submissions
Ms. Gardenia’s Speech Room does not accept unsolicited submissions, including projects, activities, items currently for sale on another website, story lines, articles, characters, drawings, clip-art, or concepts. This does not include suggestions, ideas and constructive criticism of published Content. It is Ms. Gardenia’s Speech Room’s policy to delete any such submission without reading it. Any similarity between an unsolicited submission and any elements in any Ms. Gardenia’s Speech Room creative work would be purely coincidental.
You will defend, indemnify and hold harmless Ms. Gardenia’s Speech Room, its affiliates, and their respective directors, officers, employees, shareholders, vendors, partners, contractors, agents, licensors or other representatives and all of their successors and assigns (collectively, the “Parties”) with respect to all third party claims, costs (including attorney’s fees and costs), damages, liabilities, and expenses or obligations of any kind, arising out of or in connection with your use or misuse of the Services (including, without limitation use of your account, whether or not authorized by you, and claims arising from User Submissions). Ms. Gardenia’s Speech Room retains the right to assume the exclusive defense and control of any claim subject to indemnification, and in such cases, you agree to cooperate with us to defend such claim. You may not settle any claim covered by this Section 13 without Ms. Gardenia’s Speech Room’s prior written approval.
14. Disclaimers. Limitation of Liability
THE PARTIES DO NOT WARRANT: (1) THAT THE SERVICES, ANY OF THE SERVICES’ FUNCTIONS OR ANY CONTENT WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS; (2) THAT DEFECTS WILL BE CORRECTED; (3) THAT THE SERVICES OR THE SERVERS HOSTING THEM ARE FREE OF VIRUSES OR OTHER HARMFUL CODE; OR (4) THAT THE SERVICES OR INFORMATION AVAILABLE THROUGH THE SERVICES WILL CONTINUE TO BE AVAILABLE. THE PARTIES SHALL HAVE NO LIABILITY FOR ANY SUCH ISSUES. THE PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND AS TO QUALITY, AVAILABILITY AND SUBJECT MATTER OF CONTENT. THE SERVICES, INCLUDING ALL CONTENT AND FUNCTIONS MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE SERVICES, ARE PROVIDED “AAS-IS” “AS AVAILABLE,” AND “WITH ALL FAULTS.”
YOUR ACCESS TO AND USE OF THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT) IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.
THE PARTIES WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN THEIR PERFORMANCE DUE TO ANY CAUSE BEYOND THEIR REASONABLE CONTROL, INCLUDING ACTS OF WAR, ACTS OF GOD, ACTS OF THIRD PARTY SERVICE PROVIDERS, EARTHQUAKE, FLOOD, EMBARGO, RIOT, SABOTAGE, LABOR SHORTAGE OR DISPUTE, GOVERNMENTAL ACT, POWER FAILURE OR FAILURE OF THE INTERNET OR COMPUTER EQUIPMENT.
THE PARTIES WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT), YOUR USE OF THE SERVICES (INCLUDING THEIR FUNCTIONS AND CONTENT), THESE TERMS OR YOUR USER SUBMISSIONS, EVEN IF FORESEEABLE OR EVEN IF ONE OR MORE OF THE PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE, BUT EXCLUDING WILLFUL MISCONDUCT). IN NO EVENT WILL THE PARTIES’ LIABILITY FOR OTHER DAMAGES EXCEED THE AMOUNT PAID BY YOU TO MS. GARDENIA’S SPEECH ROOM FOR ACCESS TO THE RELEVANT SERVICE IN THE THREE MONTHS PRECEDING THE CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF THE PARTIES’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE NOT SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING OPERATION OF THE SERVICES OR ANY OTHER SERVICE, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, MOTION PICTURE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE PARTIES.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
15. Governing Law, Venue, and Jurisdiction
These terms and all claims arising from or related to your use of the Services will be governed by and construed in accordance with the laws of the State of Texas. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, if applicable.
With respect to any disputes or claims not subject to arbitration (as set forth below), you agree to exclusive jurisdiction in the state and federal courts in the City of Dallas, Dallas County, Texas. Notwithstanding any other provision of these Terms, We may seek injunctive or other equitable relief from any court of competent jurisdiction.
Regardless of any statute or law to the contrary, you must file any claim or action related to use of the Services or these Terms within one year after such claim or action accrued. Otherwise, you will waive the claim or action.
16. Disputes; Arbitration
If you have any dispute with or claim against us or any of our affiliates (a “Claim”) arising out of or relating to the Services or these Terms, and the claim is not resolved by emailing Ms. Gardenia’s Speech Room, you and I each agree to resolve such disputes through an individual binding arbitration or an individual action in small claims court. Class arbitrations and class actions are not permitted, and your Claim may not be consolidated with any other person’s claim. You and I agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and I are each waiving the right to a trial by jury or to participate in a class action. This Section 16 shall survive termination of these Terms or any Subscription that you may have to any of the Services.
Before you commence an arbitration or file a small claims court action with respect to your Claim, you must first send a notice to Ms. Gardenia’s Speech Room, the notice must (1) describe the nature of your Claim; and (2) specify the damages or other relief you seek. If I and you do not then resolve the Claim within 30 days after our receipt of your Notice is received, either you or I may commence an arbitration or file a small claims court action to resolve the Claim.
Any such arbitration shall be administered by the American Arbitration Association and be conducted in accordance with its Commercial Arbitration Rules, including the Consumer-Related Disputes Supplementary Procedures, if applicable (the “Rules”). Contact information for the American Arbitration Association, as well as copies of the Rules and applicable forms, are available at ADR.org. In circumstances in which the Rules provide for an in-person hearing, such hearing will, at your request, take place in the U.S. county (or parish) of your residence, or otherwise in Dallas County, Texas.
We may be required by state or federal law to notify you of certain events. You hereby acknowledge and agree that such notices will be effective upon our posting them in the relevant Service or delivering them to you via email. You may update your email address by visiting the Services where you have provided contact information. If you do not provide us with accurate information, we will not be responsible for failure to notify you. Our failure to exercise or enforce any right or provision in these Terms will not constitute a waiver of such right or provision. These Terms, including all additional terms, conditions, and policies on the Services, constitute the entire agreement between you and us and supersede all prior agreements with respect to the subject matter hereof. Nothing in these Terms affects any non-waivable statutory rights that apply to you. If any part of these Terms is determined to be invalid or unenforceable under applicable law, that provision will be removed, and the remainder of the Terms will continue to be valid and enforceable.
If you do not agree to these Terms, you should immediately stop using the Services.
If you want to delete your account, please use contact instructions posted on your account page on msgardenia.com where you obtained the account. If you are a subscriber, you must first cancel your subscription before you will be able to delete your account. Any User Submissions you made while using the Services will continue to be governed by Section 6 of these Terms.
Sections 6 and 10-17 of these Terms will survive any termination of your access to the Services, whether I terminate your access or you voluntarily discontinue your use.