Last Revised: August 15, 2019
Our Services provide our users with a variety of resources to facilitate volunteering or attendance at specific places, called “DiveIn Featured Events”, as further described in Section 6 below.
You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our Services, including without limitation your participation in or involvement with any DiveIn Featured Event and your submission of acceptable Public Information (as defined in Section 4 (“Your Information”)). You also agree to comply with all applicable laws, statutes, ordinances and regulations regarding the transmission of technical data exported from the United States or the country in which you reside.
2.1 Eligibility. Our Services are available to all individuals who are at least 18 years of age. Our Services are not available to any temporarily or indefinitely suspended users of the Services. By registering to use our Services, you represent and warrant that you are at least 18 years of age. Additional eligibility requirements for a particular event may be set by the host or co-host of the DiveIn Featured Event.
We have the right, in our sole discretion, to suspend or terminate your use of our Services and refuse any and all current or future use of all or any portion of our Services.
2.2 Password and Security. When you complete our registration process you will create a password that will enable you to access our Services. You agree to maintain the confidentiality of your password, and are fully responsible for all liability and damages resulting from your failure to maintain that confidentiality and all activities that occur through the use of your password. You agree to immediately notify us of any unauthorized use of your password or any other breach of security. You agree that DiveIn cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 2.2.
2.3 International Use. The Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that DiveIn intends to announce such Services in your country. The Services are controlled and offered by DiveIn from its facilities in the United States of America. DiveIn makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
3. Fees and Payments
3.2 Fees Assessed by DiveIn Featured Event Hosts or Organizers; Payments to Featured Event Hosts or Organizers. Some organizers or creators or hosts of DiveIn Featured Events (collectively, “Organizer”) may require or request fees for participation in a DiveIn Featured Event. Individual DiveIn Featured Event fees, or other event fees are at the discretion of each Organizer, who decides whether such fees are required, the amount, frequency, payment options, refund policies, and how such fees are spent. Fees assessed by Organizers are remitted to the Organizer and not to DiveIn. To the extent that you use Amazon Payments, PayPal or another payment mechanism (e.g., check or cash), to pay fees assessed by an Organizer, you acknowledge that DiveIn does not control the transaction, and that you solely bear all risk in connection with the transaction. Refunds of any payment you make to any Organizer are subject to that Organizer’s policies and applicable law. If you believe any payment to an Organizer is in error, you must contact the Organizer, not DiveIn, to seek resolution. You make payments to any Organizer at your own risk. We cannot ensure the accuracy or truthfulness of the statements made by any Organizer and have no control over any actions or omissions of any Organizer, or that you will be satisfied with how your payment is spent. Your correspondence or business dealings with, or participation in promotions of DiveIn Featured Events or groups, including payment and related services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the applicable Organizer. DiveIn will have no liability with respect to any transactions that occur between you and any Organizer.
3.3 Promotions; Coupon Codes. We may from time to time offer promotions where we or an Organizer may discount or waive certain fee-based products or services offered through the DiveIn Services. We may offer coupon codes as a mechanism for processing a discount or credit. Coupon codes have no cash value, are not retroactive, and unless specified, are non-transferable and expire within 30 days of date of issue. Additionally, we may ship free DiveIn promotional materials to an address you specify in order to promote your DiveIn group.
3.4 Consent to Disclosure. You acknowledge and agree that DiveIn may disclose Your Information (as defined in Section 4) if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (a) comply with a current judicial proceeding, a court order or legal process served on us or our website, (b) enforce this Agreement, (c) respond to claims that Your Information violates the rights of third parties; (d) protect the rights, property or personal safety of DiveIn, its employees, users and the public; or (e) enable the transfer or sale to another entity of all or substantially all of our stock or assets in the line of business to which this Agreement relates, or upon any other corporate reorganization, subject to the promises made in this Agreement. We also may disclose any information about you to law enforcement or other government officials as we, in our sole discretion, believe necessary or appropriate, in connection with an investigation of fraud, intellectual property infringements, or other activity that is illegal or that we believe may expose us or you to legal liability.
4. Your Information
4.1 Definition. “Your Information” is defined as any information, post or other material or content you provide or otherwise make available (directly or indirectly), including through the registration process of DiveIn, or through the use of our Services, or in any comment feed or forum or through email. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of your Public Information (as defined below).
Any of Your Information that, through the use of our Services or otherwise, you submit or make available for inclusion on publicly accessible areas of our Website or Application is referred to as “Public Information”; any other portion of Your Information shall be referred to as “Private Information.” “Publicly accessible” areas of our Website or Application are those areas that are available either to some or all of our users (i.e., not restricted to your viewing only) or to the general public.
You should understand that your Public Information may be accessible by and made public through syndication programs (including data feed tools) and by search engines, metasearch tools, crawlers, metacrawlers and other similar programs.
4.2 Restrictions. In consideration of your use of our Services, you agree that Your Information:
(a) shall not be fraudulent;
(b) shall not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
(c) shall not violate any law, statute, ordinance or regulation;
(d) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing;
(e) shall not be obscene or contain, pornography, child pornography, or photographs of unclothed person(s);
(f) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
(g) shall not create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers;
(h) shall not link directly or indirectly to any materials to which you do not have a right to link to or include.
In addition, you agree that you will provide us with your valid, current email address, both at the time of your registration with us and from time to time as your email address changes.
5. Use of Services
5.1 Control. You, and not DiveIn, are entirely responsible for all of Your Information that you upload, post, email, transmit or otherwise make available via our Services. We do not control Your Information or the information of or posted by other users and do not guarantee the accuracy, integrity or quality of Your Information or the information of or posted by other users. Nor do we endorse any opinions expressed by you or other users. You understand that by using our Services, you may be exposed to information that is offensive, indecent or objectionable. We do not have any obligation to monitor, nor do we take responsibility for, Your Information, Public Information or information of or posted by other users. You agree that under no circumstances will DiveIn its directors, officers, shareholders, employees, consultants, agents, advisers, affiliates, subsidiaries or its third-party partners be liable in any way for any information, including, but not limited to, for any errors or omissions in Your Information or the Information of or posted by other users, or for any loss or damage of any kind incurred as a result of the use of Your Information or Information of or posted by other users posted, emailed, transmitted or otherwise made available in connection with our Services, or for any failure to correct or remove information.
5.2 API License. Subject to the terms and conditions of this Agreement, DiveIn grants you a limited, non-exclusive, non-transferable, non-sublicensable license to use any application programming interface (“API”) that DiveIn makes available via the Services for the sole purpose of integrating or making available Public Information on another web site. DiveIn reserves all rights not expressly granted under this Agreement.
5.3 Grounds for Removal, Sanction and/or Suspension. Notwithstanding any other provision of this Agreement, the following types of actions are cause for immediate removal, repeal and/or suspension or termination of your account:
(a) The use of our Services to (including, without limitation, eligibility requirements):
(i) harm or intimidate another person in any way, including restricting or inhibiting any other user from using our Services;
(ii) impersonate any person or entity (including DiveIn, DiveIn staff and other members), or falsely state or otherwise misrepresent your affiliation with any person, through the use of similar email addresses, nicknames, or creation of false account(s) or any other method or device;
(iii) disguise the origin of any Public Information that is transmitted to any third party;“
(iv) stalk” or otherwise harass another;
(v) advertise merchandise, auctions, services or commercial websites, including offers to trade or charitable solicitations unrelated to the topic or spirit of the DiveIn Featured Event
(vi) resell Public Information or access to Public Information; or
(vii) collect or store personal data about other users;
(b) Posting any Public Information or other material:
(i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, intimidating, vulgar, obscene, profane, libelous, invasive of another’s privacy (including the posting of private emails or contact information about another individual), hateful, or racially, ethically or otherwise objectionable, including any Public Information or other material that may be considered hate speech;
(ii) that is obscene, pornographic or adult in nature;
(iii) that you do not have a right to make available under any law or under contractual or fiduciary relationships;
(iv) that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party or rights of publicity or privacy;
(v) that is unsolicited or unauthorized advertising, promotional materials, or any other form of solicitation (including, but not limited to, “spam,” “junk mail,” and “chain letters”);
(vi) that is inappropriate, posted in bad faith, or contrary to the spirit of any Event;
(vii) that uses the Services primarily as a lead generator or listing service for another website;
(c) Encouraging others to violate this Agreement;
(d) Violation (intentional or unintentional) of this Agreement, or of any applicable local, state, national or international law, statute, ordinance or regulation;
(e) Disclose the Private Information of any member of a DiveIn Featured Event without the permission of that member; or
(f) Transmit money to DiveIn or any associated entity through financial accounts that are stolen, fraudulent or otherwise unauthorized.
Also, your posting of other inappropriate actions, Public Information or other materials may also warrant removal and/or suspension from our Website or Application. DiveIn reserves the right to remove any post or other material without warning or further notice.
While we prohibit such conduct and content, you understand and agree that you nonetheless may be exposed to such conduct or content and that you use the Services and attend a DiveIn Featured Event at your own risk.
For purposes of this Agreement, “posting” includes uploading, posting, emailing, commenting, transmitting or otherwise making available. Without limiting the foregoing, DiveIn and its designees shall have the right to remove any Public Information or other material that violates this Agreement or is otherwise objectionable.
5.4 Interference with Services.
You agree that you will not:
(a) upload, post, email, comment, or otherwise transmit any computer routines, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(c) take any action that imposes an unreasonable or disproportionately large load on our infrastructure; or
(d) copy, reproduce, alter, modify, or publicly display any information displayed on our Website or Application (except for Your Information), or create derivative works from our Website or Application (other than from Your Information), to the extent that such action(s) would constitute copyright infringement or otherwise violate the intellectual property rights of DiveIn or any other third party, except with the prior written consent of DiveIn or the appropriate third party.
5.5 General Practices Regarding Use of Services. You acknowledge and agree that we may establish general practices and limits concerning the use of our Services. You agree that we have no responsibility or liability for the storage or the deletion of, or the failure to store or delete, any of Your Information. You acknowledge that we reserve the right to log off users who are inactive for an extended period of time. In addition, you acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
6. Meetings at Venues and Events
6.1 DiveIn Featured Events. Through our Services we provide tools that enable our users to arrange physical meetings (a “DiveIn Featured Event”) at venues that include, but are not limited to, public parks, private homes or private enterprises (such as coffee shops or retail stores), as well as events that include, but are not limited to, sports games, concerts, and activities sponsored by DiveIn’s nonprofit partners. We do not supervise these DiveIn Featured Events and are not involved in any way with the actions of any individuals at these DiveIn Featured Events. As a result, we have no control over the identity or actions of the individuals who are present at these DiveIn Featured Events, and we request that our users exercise caution and good judgment when attending these DiveIn Featured Events. You attend such DiveIn Events at your own risk. You agree that DiveIn will have no liability with respect to your attendance or participation in any such Event.
6.2 Release. Because we do not supervise or control the DiveIn Featured Events or interactions among or between users and other members, or users and other persons or companies whose services we make available through the Services, you agree that you bear all risk and you agree to release DiveIn (and our officers, directors, shareholders, agents, employees, affiliates, subsidiaries, and third party partners) from any and all claims, demands, and damages (direct, indirect, actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, now and in the future, arising out of or in any way connected with your use of the Services, your Third Party Transactions (as defined below), any disputes among users, and/or your participation in or attendance at any Event, including transportation to or from such Event, or the actions of you or other persons at, any such Event. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver. You waive and relinquish all rights and benefits which you have or may have under Section 1542 of the Civil Code of the State of California or any similar provision of the statutory or non-statutory law of any other jurisdiction to the full extent that you may lawfully waive all such rights and benefits.
7. Communications from DiveIn and Members of the DiveIn Community
7.1 DiveIn Communications. You understand that certain communications, such as service announcements and newsletters, as well as offers of sponsorship or promotion relevant and beneficial to you or your DiveIn Featured Event, are part of our Services. By using our Services, you expressly agree to receive such communications from DiveIn to the email address you provided upon registration or currently associate with your account. You may manage your subscriptions to DiveIn communications in the settings page of your account or by clicking “Unsubscribe” on an e-mail you receive from DiveIn; however, some basic communications are a necessary part of our Services and may not be disabled.
7.2 Communications with Members of the DiveIn Community.
(a) Your Organizer. By joining a DiveIn Featured Event, you understand and agree that you may receive communications from your Organizer and other attendees in the normal course of utilizing our Services.
(b) Private email. You may choose to limit which category of DiveIn members may send you private communications through our Services by blocking individuals whom you find to be disagreeable.
(c) DiveIn Featured Event Members. If you are an Organizer, you agree to receive messages from individual members of your DiveIn Featured Event.
7.3 Role of Organizer. You understand that the Organizer of a DiveIn Featured Event in which you are a member in any capacity has the right, in his or her sole discretion, to temporarily suspend, indefinitely suspend or terminate your position in his, her, or its Event, and to temporarily or permanently remove any content or information that you have posted in connection with such DiveIn Featured Event. Please be aware that an Organizer is: (a) not DiveIn’s representative or agent, and therefore an Organizer may not enter into contractual relations or obligations on DiveIn’s behalf; (b) not entitled to enter into contractual relations or obligations on behalf of specific Event members unless expressly agreed by those Event members; and (c) acting independently, and therefore no contractual relationship or obligation arises between an Organizer and an individual event member unless otherwise agreed.
We may provide, or third parties may provide, links to other websites or resources. Because we have no control over such websites or resources, you acknowledge and agree that we are not responsible for the availability of such websites or resources, and do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. When you leave our Website or Application, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any third-party websites or applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. You also acknowledge and agree that DiveIn shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites, applications, or resource.
10. Interactions with Marketing Partners and Third Parties
Your correspondence, business dealings, or other interactions with, or participation in promotions of, marketing partners or other third parties found on our Website, Application or through our Services (“Third Party Transactions”), including payment and delivery of related goods or services, transportation services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such marketing partner or other third party. When engaging in a Third Party Transaction, the terms and conditions and policies of the applicable third party, not of DiveIn, will govern your Third Party Transaction. You agree that DiveIn shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such marketing partners or other third parties on our Website, Application or located through the use of our Services.
You agree to indemnify and hold DiveIn and our officers, directors, shareholders, agents, employees, consultants, affiliates, subsidiaries and third-party partners (“DiveIn Parties”) harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of (a) your breach of your representations and warranties or this Agreement or the documents it incorporates by reference, (b) your use, or inability to use, our Services or any other user’s information, (c) Your Information, (d) your violation of any law, statute, ordinance or regulation or the rights of a third party, including other users of the Service; or (e) your participation in a DiveIn Featured Event. Without limiting the foregoing, you, as an Organizer, agree to indemnify and hold the DiveIn Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any DiveIn Featured Event member or third party due to or arising out of your actions as an Organizer, including your organization of any DiveIn Event or your use of money paid to you by members of your DiveIn Featured Event. DiveIn reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with DiveIn in asserting any available defenses. You agree that the provisions in this section will survive any termination of your account, the Terms or your access to the Services.
12. Warranties; Liability
12.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE DIVEIN SERVICES IS AT YOUR SOLE RISK, AND THE DIVEIN SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE DIVEIN PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) DIVEIN PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE DIVEIN SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE DIVEIN SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE DIVEIN SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE DIVEIN SERVICES WILL BE CORRECTED.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE DIVEIN SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE DIVEIN SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) ANY SERVICES OFFERED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES, INCLUDING DIVEIN FEATURED EVENTS OR ANY THIRD PARTY TRANSACTIONS, ARE ACCESSED OR USED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGES INCURRED IN CONNECTION WITH YOUR PARTICIPATION OR INVOLVEMENT IN SUCH SERVICES.
(d) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. DIVEIN MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DIVEIN OR THROUGH THE DIVEIN SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
12.2 Limitation of Liability. YOU AGREE THAT IN NO EVENT SHALL DIVEIN PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF DIVEIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH (A) OUR SERVICES OR THIS AGREEMENT OR THE INABILITY TO USE OUR SERVICES (HOWEVER ARISING, INCLUDING NEGLIGENCE), (B) THIRD PARTY TRANSACTIONS, OR (C) YOUR USE OF OUR SERVICES OR ANY THIRD PARTY SERVICES OFFERED THROUGH OUR SERVICES, INCLUDING TRANSPORTATION TO OR FROM DIVEIN EVENTS. OUR LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES, IF ANY, YOU PAY TO US IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100.
12.3 Exclusions. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS IN THIS SECTION 12 MAY NOT APPLY TO YOU.
13. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with DiveIn and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
13.1 Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by DiveIn that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and DiveIn, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
13.2 Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to DiveIn should be sent to: 3749 Buchanan Street, P.O. Box 475877, San Francisco, CA 94123. After the Notice is received, you and DiveIn may attempt to resolve the claim or dispute informally. If you and DiveIn do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
13.3 Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
13.4 Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
13.5 Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and DiveIn, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and DiveIn.
13.6 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and DiveIn in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND DIVEIN WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
13.7 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
13.8 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
13.9 Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or effect any other portion of this Arbitration Agreement.
13.10 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with DiveIn.
13.11 Small Claims Court. Notwithstanding the foregoing, either you or DiveIn may bring an individual action in small claims court.
13.12 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
13.13 Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in San Francisco, California, for such purpose.
We reserve the right at any time or times to modify or discontinue, temporarily or permanently, all or any portion of our Services with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or termination of our Services.
15. Termination; Breach
You agree that we, in our sole discretion, may issue a warning, temporarily suspend, indefinitely suspend, remove content or information you have posted, or terminate your account your status as a particular DiveIn Featured Event member or Organizer, or your ability to use all or any portion of our Services (including any APIs), for any reason, including, without limitation, (a) for lack of use, (b) if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the documents or agreements it incorporates by reference, (c) if we are unable to verify or authenticate any information you provide to us, or (d) if we believe that your actions may cause legal liability for you, our users or us. You agree that any termination of your account or access to all or any portion of the Services under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or our Services. You also agree that we shall not be liable to you or any third party for any termination of your use of or access to all or any portion of the Services.
16. Trademarks; Copyrights; Proprietary Rights
16.1 DiveIn’s Trademarks. DiveIn trademarks and service marks, and other DiveIn logos, products and service names, are trademarks of DiveIn, Inc. (the “DiveIn Trademarks”). Except as otherwise permitted by law, you agree not to display or use in any manner the DiveIn Trademarks without DiveIn’s prior written consent. Other trademarks, services marks, and trade names that may appear on or in the Services are the property of their respective owners.
16.2 Copyrights. The Website, Application and Services are protected by copyright laws throughout the world. Subject to the Terms, DiveIn grants you a limited license to reproduce portions of the Website or Application for the sole purpose of using the Services for your personal purposes.
16.3 Proprietary Rights. You acknowledge and agree that our Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You also acknowledge and agree that content contained in sponsor advertisements or information presented to you through our Services or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as consented to by DiveIn or advertisers in writing, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on our Services, in whole or in part.
17. No Resale
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of DiveIn’s Services, use of the Services, or access to the Services for any sales of goods or services, or promotion of a company, good, or service unrelated to the topic or spirit or the DiveIn Featured Event.
18. Additional Terms
18.1 Notices. Except as otherwise stated in this Agreement or as expressly required by local law, any notice to us shall be given by certified postal mail to DiveIn Inc., Attn: Legal Department, 3749 Buchanan Street, P.O. Box 475877, San Francisco, CA 94123, or by email to firstname.lastname@example.org, and any notice to you shall be given to the email address that you provided us during the registration process. Notice shall be considered given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Notice given by postal mail shall be considered given three (3) days after the date of mailing.
18.2 Entire Agreement. This Agreement constitutes the entire agreement between you and DiveIn, superseding any prior agreements between you and DiveIn. To the extent that you have previously registered with DiveIn and provided Your Information, this Agreement now governs how DiveIn may use Your Information, whether provided in the past or the future.
18.3 No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship between you and DiveIn is intended or created by this Agreement.
18.4 Governing Law. Except as expressly provided in this Section, (a) this Agreement and the relationship between you and DiveIn shall be governed by the laws of the State of California without regard to its conflict of laws provisions, as such laws are applied to agreements entered into and to be performed entirely within California between California residents, and (b) you and DiveIn agree to submit to the personal and exclusive jurisdiction of the courts located within the State of California.
18.5 Assignment. You agree that this Agreement, all rights herein, and all incorporated agreements may be automatically assigned by DiveIn, in our sole discretion, to one or more third parties in the event of a merger, acquisition, corporate reorganization, sale of all or substantially all of DiveIn’s assets, or similar transaction.
18.6 No Guaranty. We do not guarantee continuous, uninterrupted or secure access to our Services, and operation of our Website or Application may be interfered with by numerous factors outside of our control.
18.7 No Waiver. DiveIn’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision and does not waive our right to act with respect to subsequent or similar breaches.
18.8 Severance. If any provision of this Agreement is found to be invalid by a court of competent jurisdiction, you and DiveIn nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of this Agreement will remain in full force and effect.
18.9 Survival. Sections 4.3 (License), 6.2 (Release), 8 (Privacy), 10 (Interactions with Marketing Partners and Third Parties), 11 (Indemnity), 12 (Warranties; Liabilities), 13 (Dispute Resolution), 18.4 (Governing Law), 18.9 (Survival), and 19.10 (Limitation) shall survive any termination or expiration of this Agreement.
18.10 Limitation. You and DiveIn each agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of our Services or this Agreement must be filed within one (1) year after the claim or cause of action arose or be forever barred.
18.11 Titles. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
19. Disclosures; Violations
The Services offered under this Agreement is offered by DiveIn, Inc., 3749 Buchanan Street, P.O. Box 475877, San Francisco, CA 94123. Please report any violations of this Agreement by sending a notice of the violation to the Secretary of DiveIn by postal mail or email, as follows:
3749 Buchanan Street
P.O. Box 475877
San Francisco, CA 94123
By indicating during registration that you have read and agreed to this Agreement, you are agreeing that you have read and understand this Agreement and agree to all of the terms of this Agreement, including Section 13 which provides that, except as otherwise specified in Section 13.1, all disputes, claims or controversies arising out of or relating to this Agreement shall first be dealt with through negotiation and mediation and if the dispute is not resolved shall then be submitted to binding, neutral arbitration.