Last updated: October 7, 2019
You represent that (1) you have read and agree to these Terms, and (2) you are of legal age to form a binding contract with ATK. Please read these Terms. BY USING ACCESSING THE SITE OR ANY SERVICES, YOU AFFIRM THAT YOU HAVE READ, UNDERSTOOD, AND ACCEPTED THE TERMS AND CONDITIONS IN THESE TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE CONDITIONS, YOU MAY NOT ACCESS THE SITE OR USE ANY OF THE SERVICES.
1. NO UNLAWFUL USE
You covenant and agree to cooperate promptly, openly and fully with ATK and its agents, attorneys and designees in connection with any investigation regarding any registration or the use of the Site, the Services and any information provided by ATK in connection therewith.
Each User must register with ATK with a valid email address. You agree to provide true, accurate and complete information during the registration process and promptly update your information with any changes as they occur. You agree not to impersonate any person or company or use a name that you are not authorized to use. If any information you provide is inaccurate, untrue or incomplete, without limiting any other remedies, ATK has the right to terminate your use of the Services and ATK, its agents, affiliates, attorneys, representatives and partners shall have the right to recover from you any costs or losses incurred as a direct or indirect result of the inaccurate or incomplete information. You authorize ATK and its agents, affiliates, attorneys, representatives and partners to make any inquiries they consider necessary to validate your registration.
4. PORTAL REGISTRATION; SERVICE SUBSCRIPTION AGREEMENT
5. REGISTERED USER ACCOUNT, PASSWORD AND SECURITY
As part of the registration or account creation process, you will create login credentials by providing an email address and selecting a password. You also have to give us certain registration information, all of which must be accurate and updated. You must keep your login credentials strictly confidential, you may not allow anyone to use your registration, and you may not access the Site and/or the Services using any other person’s login credentials. ATK reserves the right to suspend and/or terminate your access at any time in its sole discretion. ATK shall not be responsible for losses incurred by Users as the result of their misuse of email addresses, passwords or their registration.
6. USER GENERATED CONTRIBUTIONS
ATK may invite you to chat, participate in or comment on blogs, message boards, online forums and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to us or via the Site, including without limitation, text, writings, video, audio, photographs, graphics, comments, suggestions or personally identifiable information or other material (collectively, “Contributions”). Contributions may be viewable by other users of the Site and the Services and through third party websites. As such, any Contributions you transmit will be treated as non-confidential and non-proprietary. When you create or make available Contributions, you thereby represent and warrant that:
6.1. the creation, distribution, transmission, public display and performance, accessing, downloading and copying of your Contributions does not and will not infringe the proprietary rights, including but not limited to, the copyright, patent, trademark, trade secret or moral rights of any third party;
6.2. you are the creator and owner of or have the necessary licenses, rights, consents, releases and permissions to use and to authorize us, the Site and other users of the Site to use your Contributions;
6.3. you have the written consent, release and/or permission of each and every identifiable individual person in your Contributions to use his or her name or likeness to enable inclusion and use of your Contributions in the manner contemplated by the Site;
6.4. your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous or otherwise objectionable (as determined by us), do not ridicule, mock, disparage, intimidate or abuse anyone, do not advocate the violent overthrow of any government, do not incite, encourage or threaten physical harm against another, do not violate any applicable law, regulation or rule and do not violate the privacy or publicity rights of any third party;
6.5. your Contributions do not contain material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner, and do not violate any federal or state law concerning child pornography or otherwise intended to protect the health or well-being of minors;
6.6. your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap;
7. CONTRIBUTION LICENSE
By posting Contributions to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to us an unrestricted, unlimited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide right and license to: (1) host, use, copy, reproduce, disclose, sell, resell, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part) and distribute such Contributions (including, without limitation, your image and voice) for any purpose, commercial, advertising or otherwise; (2) prepare derivative works of, or incorporate into other works, such Contributions; and (3) grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels. Such use and distribution license will apply to any form, media or technology now known or hereafter developed, and includes our use of your name, company name and franchise name, as applicable, and any of the trademarks, service marks, trade names, logos and personal and commercial images you provide. You agree to waive all moral rights in your Contributions, and you warrant that moral rights have not otherwise been asserted in your Contributions. We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. You are solely responsible for your Contributions to the Site, and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
We have the right, in our sole and absolute discretion, to: (1) edit, redact or otherwise change any Contributions; (2) re-categorize any Contributions to place them in more appropriate locations on the Site; and (3) pre-screen or delete any Contributions that are determined to be inappropriate.
8. SERVICE MODIFICATIONS
ATK may from time to time and at any time modify or discontinue, temporarily or permanently, any of or all of the Services with or without notice. ATK shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of any Service, or any portion thereof.
9. PROPRIETARY RIGHTS
10. DIGITAL MILLENIUM COPYRIGHT ACT (DMCA)
In accordance with the DMCA and other applicable laws, we have the right to limit access to the ATK sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the ATK Sites infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: Customer Support Manger
Address: 21 Drydock Avenue, Boston, MA 02210
12. INDEMNITY; DISCLAIMER OF WARRANTIES
You agree to indemnify ATK and all its affiliates, employees, agents, representatives, third party service providers, and members of their governing boards (all of which are "ATK Entities"), and to defend and hold each of them harmless, from any and all claims, actions, and liabilities and all related costs, fees, and expenses (including attorneys' fees) arising out of or related to your breach of these Terms or your use of the Service.
YOU ACKNOWLEDGE THAT YOU ARE USING THE ATK SITES AND SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED "AS IS," AND ATK HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED THEREIN OR PROVIDED BY ATK. WITHOUT LIMITING THE FOREGOING, THE ATK ENTITIES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, REGARDING USER-GENERATED CONTENT AND ATK MATERIALS. THE ATK ENTITIES AND THEIR THIRD-PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE ATK SITES WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED THROUGH THE SERVICES.
13. LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE ATK ENTITIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE ANY OF THE SERVICES OR PRODUCTS AVAILABLE THROUGH ATK, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THE ATK ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES WILL THE ATK ENTITIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY ATK IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ATK AND YOU.
ATK reserves the right, in its sole discretion at any time, to terminate, change, suspend or discontinue any aspect of the Site and/or the Services and/or to remove any data, content and materials from the Site, with or without notice. ATK may restrict, suspend or terminate your access to the Site and/or the Services if ATK believes you are in breach of our terms and conditions or applicable law, or for any other reason without notice or liability.
15. CHOICE OF LAW
You agree that these Terms and all disputes relating to these Terms and any Services, for all purposes, shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles or rules.
16. DISPUTE RESOLUTION
16.1. 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 ATK, regardless of whether such product or service was purchased prior to or after your acceptance of this Arbitration Agreement, 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. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and ATK, 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.
16.2. 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 ATK should be sent to: Chief Financial Officer, America's Test Kitchen, 21 Drydock Avenue, Boston, MA 02210.
After the Notice is received, you and ATK may attempt to resolve the claim or dispute informally. If you and ATK do not resolve the claim or dispute within thirty (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.
16.3. Arbitration Rules. Arbitration shall be initiated through the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS 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 the 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 JAMS Streamlined Arbitration Rules governing the arbitration are available online at http://www.jamsadr.com. 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 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
16.4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based 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 agreed by the parties.
16.5. Time Limits. If you or ATK pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.
16.6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and ATK, 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 JAMS 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 ATK.
16.7. 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 a court and are subject to very limited review by a court. In the event any litigation should arise between you and ATK in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND ATK WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
16.8. 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.
16.9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
16.10. 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 Agreement shall continue in full force and effect.
16.11. 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 affect any other portion of this Arbitration Agreement.
16.12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with ATK.
16.13. Small Claims Court. Notwithstanding the foregoing, either you or ATK may bring an individual action in small claims court.
16.14. 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.
16.15. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.