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