Effective Date: January 28, 2021
These Terms apply to your use of the Sites and Services (however accessed and/or used, whether via personal computers, mobile devices or otherwise) or any other means or applications in which you connect with us and your use of our Sites or Services.
In some instances, both these Terms and separate guidelines or rules setting forth additional or different terms and/or conditions will apply to your use of our Services (“Additional Terms”). By way of example, your use of our Services is subject to the terms and conditions or official rules for the promotions found on our Sites, and those Additional Terms are incorporated into these Terms by this reference.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTIONS 13 BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
We recommend that you read these Terms in full to ensure you are fully informed.
1. WHO WE ARE
JMS Media is a U.S. based company that produces episodic content and promotional services enabling consumers to enter sweepstakes and win prizes as well as providing incentive marketing services through our marketing partners.
2. ACCEPTANCE OF TERMS
Agreement to the Terms. Each time that you access or use our Sites or Services you signify that you have read, understand, and agree to be bound by these Terms. If you do not agree to any of these Terms you must discontinue using the Sites and Services.
Eligibility. You must be at least 18 years old to use the Sites and Services and have the legal capacity to be legally bound by these Terms and the authority to bind the Business which places orders with us.
Electronic Form/Communications. By accessing or using the Sites or Services you consent to having this agreement provided to you in electronic form and receiving communications from us electronically. We may communicate with you by postal mail, e-mail or by posting notices on the Sites. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
3. ACCOUNT AND CONTACT INFORMATION
Access to the Sites and Services. You do not need to register in order to access and browse some sections of the Sites or Services, but you will not be able to access our Services or enter a sweepstakes unless you provide contact information. If you are browsing the Sites or Services and have not yet registered with us or provided information to enter a promotion your use of the Site or Services will still be subject to these Terms.
Account. You must provide accurate, current and complete information during the entry process and any falsification of any information whatsoever may, at JMS Media’s option, result in immediate suspension or termination of your right to use the Services or disqualification in any promotion.
Security. If you use our Services you are responsible for ensuring that your computer and mobile device are free from all types of malicious content, including content that may track any data you enter via the Services.
Contacting You. When you provide us with contact information in connection with a particular activity or when using our Services, such as an email address or telephone number, you agree that this action constitutes a purchase or inquiry establishing a business relationship with us. You expressly consent to our communicating with you using contact information obtained directly from you or which is provided to us with your consent. You attest that you have the legal authority over any contact information provided to us and can provide us and/or third parties with the authorization to contact you. This means you may be contacted in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, IM messaging, or any other means of communication that your wireless or other telecommunications device may be capable of receiving), in accordance with applicable laws or regulations (“Applicable Laws”).
4. YOUR USE OF THE SITES AND SERVICES
Monitoring. JMS Media reserves the right to monitor all network traffic to the Sites or Services and anyone using the Sites or Services expressly acknowledges that such monitoring may occur. JMS Media may block unauthorized attempts or intrusions to upload or change information or cause damage to the Sites or Services in any fashion.
Objectionable Content. If you encounter something you find objectionable and in violation of these Terms, you can report it to firstname.lastname@example.org.
Feedback/Idea Submissions. JMS Media does not accept unauthorized idea submissions. Any ideas disclosed to JMS Media are not confidential and JMS Media may develop, use and freely disclose or publish similar ideas without compensating you or accounting to you. All comments or materials submitted to us, including testimonials, images, reviews, questions, comments, or suggestions (collectively, “Feedback”), is received and treated by us on a non-confidential and unrestricted basis. If you provide JMS Media with any Feedback, you hereby grant JMS Media a non-exclusive, fully-paid, royalty-free, irrevocable, perpetual, transferable, sublicensable license to reproduce, distribute, modify, prepare derivative works based on, publicly perform, publicly display, make, have made, use, sell, offer to sell, import, and otherwise exploit that Feedback for any purposes, for all current and future methods and forms of exploitation throughout the world. If any such rights may not be licensed under Applicable Laws (such as moral and other personal rights), you hereby waive and agree not to assert all such rights. You understand and agree that JMS Media is not required to make any use of any Feedback that you provide. You agree that if JMS Media makes use of your Feedback, JMS Media is not required to credit or compensate you for your contribution. You represent and warrant that you have sufficient rights in any Feedback that you provide to JMS Media to grant JMS Media and other affected parties the rights described above. This includes but is not limited to intellectual property rights and other proprietary, privacy or other personal rights.
Termination. JMS Media may terminate your access to its Sites or Services immediately or disqualify you from any of our promotions at any time without notice, if, in JMS Media’s sole opinion, you have violated any provision of these Terms. Termination will not limit any of JMS Media’s rights or remedies at law or in equity.
Data Collection Policy. No party unaffiliated with JMS Media may collect or use, or direct, authorize or assist other persons or entities to collect or use any data from a user, or a computer or device operated by a user, while accessing our Sites or Services without our prior express written permission.
Modification to Services. JMS Media has the right to modify its Services (and products and services accessible through its Services), and its Sites at any time in its sole discretion which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that JMS Media has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality or other aspects of its Sites or Services. Your only right with respect to any dissatisfaction with any modifications made to its Sites or Services, or any policies or practices of JMS Media in providing its Services is to stop using the Sites or Services.
Injunctive Relief. You expressly acknowledge and agree that there may be no adequate remedy at law for a breach of this Section, that such a breach may irreparably harm JMS Media and JMS Media is entitled, without limiting any of its other remedies at law or equity, to seek injunctive relief (temporary and permanent) from any court of competent jurisdiction immediately upon request and without the need to post a bond or security, with respect to any such breach or potential breach of these Terms.
5. PROPRIETARY RIGHTS
Ownership of Content and Marks. The Sites and Services, and all content published on or accessible through the Sites and Services (‘Content”), is owned by JMS Media, its affiliates or its licensors, and is protected by laws governing copyrights patents, trademarks, trade secrets and/or other proprietary rights. JMS Media owns a copyright in the selection, coordination, arrangement and enhancement of such Content and a copyright in the Sites. All trademarks, logos, service marks, trade names, and trade dress appearing on the Content and Sites, (“Marks”), are proprietary to JMS Media or its licensors. You acknowledge that you do not acquire any ownership rights in any Content or Marks downloaded or accessed from the Sites or Services. You may not frame or utilize framing techniques to enclose any Marks or Content (including images, text, page layout, or form) nor use any Meta tags or any other “hidden text” utilizing JMS Media, its affiliates’, or its licensors’ name or Marks without the prior express written consent of JMS Media. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, the Sites, Services, Marks or Content, in whole or in part, without the prior written consent or JMS Media.
6. DISCLAIMER OF WARRANTIES
IF YOU CHOOSE TO USE THE SITES OR SERVICES, YOU DO SO VOLUNTARILY AND AT YOUR SOLE RISK. THE CONTENT AND INFORMATION OFFERED ON OR THROUGH THE SITES OR SERVICES, ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, WE DISCLAIM ALL WARRANTIES OR OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR TERMS OF SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT: THAT THE SITES OR SERVICES, OR ANY OF THEIR FUNCTIONS, WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT ANY PART OF THE SITES OR SERVICES, OR THE SERVERS THAT MAKE THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS ,INCLUDING WHETHER UPDATES WILL AUTOMATICALLY DOWNLOAD WHEN INSTALLED OR THAT DEPENDING ON YOUR DEVICE WHETHER UPDATES WILL BE AVAILABLE TO YOU; OR THAT ANY PROMOTIONS SHOWN WILL BE WILL ALWAYS BE AVAILABLE TO YOU. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITES OR SERVICES OR CONTENT CONTAINED THEREIN WITH REGARD TO THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, APPROPRIATENESS FOR ANY PURPOSE, OR OTHERWISE. DUE TO THE NATURE OF THE INTERNET, JMS MEDIA CANNOT GUARANTEE THE CONTINUOUS AND UNINTERRUPTED AVAILABILITY AND ACCESSIBILITY OF THE SITES OR SERVICES. JMS MEDIA MAY RESTRICT THE AVAILABILITY OF THE SITES OR SERVICES OR CERTAIN AREAS OR FEATURES IF NECESSARY, IN VIEW OF CAPACITY LIMITS, THE SECURITY OR INTEGRITY OF ITS SERVERS, OR TO CARRY OUT MAINTENANCE MEASURES THAT ASSIST IN THE PROPER OR IMPROVED FUNCTIONING OF THE SITES OR SERVICES. IF YOU ARE DISSATISFIED WITH ANY OF THE MATERIALS CONTAINED IN THE SITES OR SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SITES OR SERVICES.
7. LIMITATION OF LIABILITY
You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Sites, Services and access to Content remains with you. Neither JMS Media nor any other party involved in creating, producing, or delivering the Sites or Services, or Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these Terms or from the use of or inability to use the Sites or Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not JMS Media has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed its essential purpose. In no event will JMS Media’s aggregate liability arising out of or in connection with these Terms and your use of the Sites or Services, exceed the amounts you have paid to JMS Media in the twelve-month period prior to the event giving rise to the liability, or $50USD if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between JMS Media and you. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. YOUR LEGAL LIABILITY
You agree to defend, indemnify and hold harmless JMS Media and its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, and licensors from and against all damages, losses, liabilities, claims, and costs (including, but not limited to, reasonable attorneys’ fees and costs including costs to respond to regulatory inquiries, actions or subpoenas) related to all third party claims, charges, and investigations, arising from, relating to, or caused by your failure to comply with these Terms.
9. CALIFORNIA RESIDENTS RIGHTS
If you are a California resident and in connection with the foregoing releases, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states:
“A general release does not extend to claims which the creditor or releasor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his settlement with the debtor.”
10. GEOGRAPHIC RESTRICTIONS
JMS Media will provide the Sites and Services with reasonable care and skill but makes no representations that they are appropriate for use from locations outside the United States or compliant with laws outside the United States. If you access the Sites or Services from outside the United States, you are responsible for compliance with local laws in relation to your use of the Sites or Services.
12. THIRD PARTY LINKS
You may be able to access other websites, mobile applications or resources through links accessed on the Sites or Services. Because JMS Media has no control over such websites or mobile applications you acknowledge and agree JMS Media is not responsible for the availability of such external websites, mobile applications or resources accessible from those third parties, and does not endorse and is not responsible or liable for any content, advertising, products, services, or other materials available from such websites or mobile applications, nor does JMS Media endorse any such websites, mobile applications or resources, or the products or services assessable on such websites or mobile applications.
13. ARBITRATION / DISPUTE RESOLUTION
Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California without application of conflict of laws rules, except that these Arbitration provisions shall be governed by the Federal Arbitration Act.
Resolution of Any Dispute. In the event a dispute arises between you and JMS Media (“Dispute”), we want to provide you with an efficient, neutral and cost-effective means of resolving the dispute. Most customer concerns can be resolved quickly and to the customer’s satisfaction by contacting us by writing to JMS Media LLC, 6249 Langdon Ave, Van Nuys CA 91411. If, however, the Dispute cannot be resolved by the personnel directly involved, the parties shall first attempt in good faith to resolve the Dispute promptly by negotiation between duly appointed executive officers or other representatives of such parties, with full authority to negotiate and settle the Dispute. If a Dispute has not been resolved by negotiations within 90 days as provided hereinabove, such Dispute shall be submitted to JAMS, or its successor (collectively, “JAMS”), for mediation as provided hereinbelow. Any party involved in the Dispute may commence mediation by providing to JAMS and each other party involved in the Dispute a written request for mediation, setting forth the subject of the Dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel of neutrals and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the parties; provided, however, that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. None of the parties may commence arbitration or a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, or 30 business days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of arbitration or a civil action, if the parties so desire.
Limitation of Legal Remedies. IF THERE IS A DISPUTE THAT REMAINS UNRESOLVED AFTER MEDIATION, INSTEAD OF SUING IN COURT, YOU AND JMS MEDIA EACH AGREE TO THE FULLEST EXTENT PERMITTED BY LAW TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION PURSUANT TO THE JAMS ARBITRATION RULES AND PROCEDURES, ON AN INDIVIDUAL BASIS, WITHOUT CLASS RELIEF, EXCEPT FOR DISPUTES PERTAINING TO JMS MEDIA’S INTELLECTUAL PROPERTY RIGHTS AND STATUTORY CLAIMS THAT PURSUANT TO LAW ARE NOT ARBITRABLE. This agreement to arbitrate is intended to be broadly interpreted. It includes claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory (“Claim(s)”). The arbitrator’s decision and award are final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
Jury Trial Waiver. YOU AND JMS MEDIA EACH VOLUNTARILY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESOLVING ANY DISPUTE BETWEEN US ARISING OUT OF THESE TERMS OR THE SITES OR SERVICES.
Class Action Waiver. YOU AND JMS MEDIA EACH AGREE THAT CLAIMS AGAINST THE OTHER MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND NOT IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING. All arbitrations under these Terms must be conducted on an individual (and not a class-wide) basis, and an arbitrator will have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing any legal proceedings as a representative of others, participating in a class, representative, or collective action as a class representative, class member or an opt-in party, acting as a private attorney general, or joining or consolidating Claims with claims or proceedings brought by any other person (“Class Action Waiver”).
Arbitration Procedures. A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought (“Notice”). All Notices to JMS Media must be sent to the following address: JMS Media LLC, 6249 Langdon Ave, Van Nuys CA 91411. Our notice to you will be sent to you based on the most recent contact information that you provide us but if no such information exists or if such information is not current, then we have no obligation under this Section. Upon receipt of such Notice, the receiving party will have a 60-day period in which it may satisfy the Claim against it by fully curing the Claim, providing all the relief requested in the Notice, or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such 60-day cure period, you or JMS Media may commence an arbitration proceeding. Unless otherwise agreed to by you and JMS Media in writing, the arbitration will be governed and conducted by JAMS before a single arbitrator with substantial experience in the internet industry and shall follow substantive law in adjudicating the Dispute. This Section shall be construed as a written agreement to arbitrate pursuant to the Federal Arbitration Act (“FAA”). You and JMS Media agree that this Section satisfies the writing requirement of the FAA. The arbitration of any claim will be conducted in the State of California, and for any non-frivolous claim that does not exceed $5,000.00, you shall have the choice as to whether the hearing is conducted in person or by telephone. Each party will pay the fees and costs of its own counsel, experts and witnesses. The JAMS rules are available on its website at www.jamsadr.com. To the extent that this dispute resolution Section conflicts with JAMS minimum standards for procedural fairness, the JAMS rules and/or minimum standards for arbitration procedures in that regard shall control. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or for the arbitrator’s award; and any such suit may be brought only in Federal District Court or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any Dispute relating to the interpretation, applicability, unconscionability, arbitrability, or enforceability of these Terms including any claim that all or any part of these Terms are void or voidable. However, the preceding sentence shall not apply to the clause entitled “Class Action Waiver”.
Exception to Arbitration. Only disputes or actions pertaining to JMS Media’s intellectual property rights, or statutory claims that pursuant to law are not arbitrable, are exempt from arbitration.
Survival. This arbitration provision shall survive termination of these Terms.
Severability. If any provision of this Section is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply.
14. NO RIGHTS OF THIRD PARTIES
You agree that, except as otherwise expressly provided in these Terms, there are not third-party beneficiaries to these Terms.
These Terms, and policies incorporated herein, are the entire agreement between you and JMS Media. They supersede any and all prior or contemporaneous agreements between you and JMS Media relating to your use of the Sites or Services. If these Terms expire or are terminated for any reason, the provisions which by their nature should continue after termination including Proprietary Rights, Disclaimer of Warranties, Limitation of Liability, Your Legal Liability, Arbitration/Dispute Resolution, No Rights of Third Parties, and Miscellaneous shall survive any such expiration or termination. If any provision of these Terms is declared or found by a court of competent jurisdiction or arbitrator to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions will remain fully enforceable, except that if the Class Action Waiver for any Claim cannot be enforced, then the provision to arbitrate will not apply. You may not assign your rights under these Terms to any third party without JMS Media’s prior written permission. JMS Media may assign these Terms, in whole or in part, at any time. Headings in the Terms are for convenience of reference only and shall not affect the interpretation or construction of this agreement. The failure of JMS Media to partially or fully exercise any rights or the waiver of JMS Media to enforce any breach of these Terms by you, shall not prevent a subsequent exercise of such right by JMS Media or be deemed a waiver by JMS Media of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of JMS Media under these Terms and any other applicable agreement between you and JMS Media shall be cumulative, and the exercise of any such right or remedy shall not limit JMS Media’s right to exercise any other right or remedy. In the event of any conflict or inconsistency between any of these Terms any other terms or conditions applicable to the Services, we shall determine which rules, restrictions, limitations, terms and/or conditions shall control and prevail in our sole discretion, and you specifically waive any right to challenge or dispute such determination.
16. CONTACT US
Please email us at email@example.com, or write to us at JMS Media LLC, 6249 Langdon Ave, Van Nuys CA 91411 if you have any questions about these Terms.
When contacting us, please include your full name, address, phone number, and email address, and indicate the specific nature of your request or inquiry.