Last Updated: April 28, 2020
Welcome to the diaTribe Change site (the “diaTribe Site”), which is owned and operated by the diaTribe Foundation (“diaTribe” or “we,” “us,” or “our”).
By using the diaTribe Site, you affirm that you are of legal age to enter into these Terms or, if you are not, that you have obtained parental or guardian consent to enter into these Terms. If neither is the case, please exit the site immediately, since you are not authorized to use the diaTribe Site.
These Terms contain a mandatory arbitration provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or any other court proceedings, including class actions.
- Changes. We may change these Terms from time to time. We will notify you of such changes by any reasonable means, including by posting the revised Terms through the diaTribe Site. If you have registered with us through the diaTribe Site, we will send you a notice of the revised Terms to the email addresses that you provided during your registration. These changes will not apply to any dispute arising prior to the date on which we posted the revised Terms or otherwise notified you of the changes. Your use of the diaTribe Site following any changes to these Terms will constitute your acceptance of such changes. The “Last Updated” legend above shows when these Terms were last changed. In addition, we may at any time modify or discontinue all or any part of the diaTribe Site; charge, modify or waive any fees required to use the diaTribe Site; or offer opportunities to some or all diaTribe Site users.
- Materials on the diaTribe Site. The information, content, and other materials provided through the diaTribe Site (collectively, the “Materials”) and all associated intellectual property rights are the property of diaTribe and its licensors and suppliers. You may use the diaTribe Site and the Materials only for personal, non-commercial purposes, and only as provided by diaTribe through the diaTribe Site. You are not permitted to, and you agree not to, modify or distribute any Materials, or otherwise do anything with the Materials that is not expressly permitted by these Terms.
- Jurisdictional Issues. The diaTribe Site is controlled or operated (or both) from the United States. The diaTribe Site is not intended to subject diaTribe to any non-U.S. jurisdiction or law. The diaTribe Site may not be appropriate or available for use in some non-U.S. jurisdictions. You use the diaTribe Site at your own risk, and you must comply with all applicable laws, rules, and regulations while doing so. We may limit the diaTribe Site’s availability at any time, in whole or in part, to any person, geographic area, or jurisdiction.
- Rules of Conduct. In connection with the diaTribe Site, you must not:
- post, send, or otherwise make available any materials that are: (a) threatening, harassing, degrading, hateful, or intimidating, (b) defamatory, libelous, fraudulent or otherwise tortious, (c) obscene, indecent, pornographic, or otherwise objectionable, or (d) protected by patent, copyright, trademark, trade secret, right of publicity or privacy, or any other proprietary right without the express prior written consent of the applicable owner;
- post, send, or otherwise make available any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or may be harmful or invasive, or that is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”);
- use a false name or e-mail address, pretend to be any person or entity, or mislead as to the origin of any content;
- express or imply that any statements you make are endorsed by us;
- use any diaTribe Trademark or any diaTribe graphics, logos, page headers, button icons, scripts or services names;
- use the diaTribe Site or any diaTribe Materials for any commercial purpose or for any unlawful purpose, modify or distribute any portion of the diaTribe Site or any Materials, systematically download or store any Materials, or otherwise access or use the diaTribe Site or any Materials for any purpose other than as expressly authorized by diaTribe;
- harvest or collect information about users of the diaTribe Site.
- interfere with or disrupt the operation of the diaTribe Site or the servers or networks used to make the diaTribe Site available.
- restrict or hinder any other person from using the diaTribe Site.
- reverse engineer, decompile or disassemble any portion of the diaTribe Site or any Materials, except where such restriction is expressly prohibited by applicable law.
- remove any copyright, trademark, or other proprietary rights notice from the diaTribe Site or any Materials.
- frame or mirror any portion of the diaTribe Site or any Materials, or otherwise incorporate any portion of the diaTribe Site or any Materials into any other product or service;
- Use any robot, spider, site search/retrieval application, or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather any Material, or reproduce or circumvent the navigational structure or presentation of the diaTribe Site. Notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in the diaTribe Site’s root directory, diaTribe permits the operators of public search engines to use spiders to copy materials from the diaTribe Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. diaTribe reserves the right to revoke such permission either generally or in specific cases, at any time and without notice.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the diaTribe Site.
If you find any Materials on the diaTribe Site that you believe violate or are inconsistent with these rules of conduct, please contact the diaTribe Site administrator at firstname.lastname@example.org.
- Transactions. We may offer you the ability to purchase certain products or services through the diaTribe Site (a “Transaction”). If you wish to make a Transaction, you may be asked to supply information such as your credit card number and its expiration date, your billing address, and your shipping information. You represent and warrant that you have the right to use any credit card that you submit in connection with a Transaction. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating Transactions. All information that you provide to diaTribe or such third party provider must be accurate, current, and complete. You must pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes and any shipping and handling charges relating to your Transactions. diaTribe reserves the right with or without notice to limit the available quantity of or discontinue offering any product or service; to impose conditions on the honoring of any coupon, discount or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any product or service. Refunds and exchanges will be subject to diaTribe’s applicable refund and exchange policies. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. Certain Transactions may be subject to additional terms and conditions as may be provided to you at the time of such Transactions.
- Registration; User Names and Passwords. You may need to register to use all or part of the diaTribe Site. We may reject, or require that you change, any user name, password, or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential. You, and not diaTribe, are responsible for any use or misuse of your user name or password. You must promptly notify us of any confidentiality breach or unauthorized use of your user name, password, or your diaTribe Site account.
- Profiles and Forums. The diaTribe Site may include functionality that enables you to submit certain materials such as posts, reviews, and comments (each, a “Submission”), including on profile pages or on the diaTribe Site’s interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality. Submissions must comply with these Terms. diaTribe does not endorse any submission. diaTribe is also not responsible for any use or misuse (including any distribution) of Submissions by any third party. If you choose to make any of your personally identifiable or other information publicly available through the diaTribe Site, you do so at your own risk.
- License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, and otherwise use, disclose, and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions, or other materials (“Feedback”), whether related to the diaTribe Site or otherwise, such Feedback will be deemed a Submission. You acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place diaTribe under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to provide your Submissions and to grant the licenses granted in this section, and that your Submissions do not infringe, misappropriate, or otherwise violate any intellectual property, privacy, or other right of any third party, and are not fraudulent or obscene. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of any Submission that you may have under any applicable law under any legal theory.
- Monitoring. We may (but have no obligation to) monitor, evaluate, alter or remove Submissions before or after they appear on the diaTribe Site, or analyze your access to or use of the diaTribe Site. We may disclose information regarding your access to and use of the diaTribe Site, and the circumstances surrounding such access and use, to anyone for any reason or purpose including in order to operate the diaTribe Site properly; to protect ourselves, our sponsors and our members and visitors; and to comply with legal obligations or governmental requests.
- diaTribe’s Proprietary Rights. We own the diaTribe Site, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include The diaTribe Foundation, diaTribe Learn, diaTribe Change, and any associated logos. All trade names, trademarks, service marks, and logos on the diaTribe Site not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks, or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the diaTribe Site should be construed as granting any right to use any trade names, trademarks, service marks, or logos without the express prior written consent of the owner.
- Third Party Materials; Links. Certain diaTribe Site functionality may offer access to information, products, services, and other materials offered by third parties (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route, and transmit to you the applicable Third Party Materials.
We neither control nor endorse, nor are we responsible for, any Third Party Materials. Certain Third Party Materials may be inaccurate, misleading, or deceptive and your use of Third Party Materials is at your own risk. Nothing in these Terms will be deemed to be a representation or warranty by diaTribe with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials at any time. Certain Third Party Materials may be subject to different or additional terms and conditions, such as the privacy policies of the providers of such Third Party Materials.
- Disclaimer of Warranties. To the fullest extent permitted under applicable law: (a) the diaTribe Site and the Materials are made available to you on an “As Is,” “Where Is” and “Where Available” basis, without any warranties of any kind, whether express, implied or statutory; and (b) diaTribe disclaims all warranties with respect to the diaTribe Site and Materials, including the warranties of merchantability, fitness for a particular purpose, non-infringement and title.
All disclaimers (including in this section and elsewhere in these Terms) are made for the benefit of diaTribe and its affiliates, officers, employees, agents, representatives, licensors, suppliers, and service providers (collectively, the “Affiliated Entities”), and their respective successors and assigns.
While we try to maintain the timeliness, integrity, and security of the diaTribe Site, we do not guarantee that the diaTribe Site is or will remain updated, complete, correct or secure, or that access to the diaTribe Site will be uninterrupted. The diaTribe Site may include inaccuracies, errors, and materials that violate or conflict with these Terms. Additionally, third parties may make unauthorized changes to the diaTribe Site. If you become aware of any such changes, contact us at email@example.com with a description of such alteration and its location on the diaTribe Site.
- Limitation of Liability. To the fullest extent permitted under applicable law: (a) diaTribe will not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind, under any contract, tort (including negligence), strict liability or other theory, including damages for lost profits or loss of or damage to data, Submissions, or other intangibles, even if advised in advance of the possibility of such damages or losses; and (b) the maximum aggregate liability of diaTribe for all damages, losses, and causes of action in connection with the diaTribe Site or Materials will be the greater of $100 or the total amount, if any, paid by you to diaTribe in connection with use of the diaTribe Site during the 12-months prior to the occurrence giving rise to the liability. All limitations of liability of any kind (including in this section and elsewhere in these Terms) are made for the benefit of both diaTribe and the Affiliated Entities, and their respective successors and assigns.
- Indemnity. You will indemnify and hold harmless diaTribe and the Affiliated Entities from and against all claims, liabilities, damages, judgments, losses, and expenses (including attorneys’ fees) relating to (a) your Submissions or (b) any violation of these Terms by you, including any use of the diaTribe Site or Materials in any manner other than as expressly permitted by these Terms.
- Termination. These Terms are effective until terminated. diaTribe may terminate or suspend your use of the diaTribe Site and Materials at any time and without prior notice, for any or no reason, including if diaTribe believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Upon any such termination or suspension, your right to use the diaTribe Site and Materials will immediately cease. Upon termination or suspension, diaTribe may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials. Except for your right to use the diaTribe Site and Materials, the parties’ rights and obligations under these Terms will survive any termination or suspension.
- Governing Law; Arbitration. These Terms are governed by the laws of the United States (including federal arbitration law) and the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. Except for disputes that qualify for small claims court, all disputes arising out of or related to these Terms or any aspect of the relationship between you and diaTribe, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. you agree that diaTribe and you are each waiving the right to trial by a jury. Such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. All such matters will be decided by an arbitrator and not by a court or judge.
You agree that any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are not permitted and you are agreeing to give up the ability to participate in a class action.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by these Terms. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other relevant circumstances. If the parties are unable to agree on a location, the AAA or the arbitrator will determine the location. The arbitrator’s decision will follow the terms of these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will prevent you from bringing issues to the attention of federal, state, or local agencies, and, if the law allows, they can seek relief against us for you.
- Filtering. We hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that diaTribe is not responsible for the site and does not endorse any of the products or services listed on the site.
- Information or Complaints. If you have a question or complaint regarding the diaTribe Site, please send an e-mail to firstname.lastname@example.org. You may also contact us by writing to 776 Haight St., San Francisco, CA 94117, or by calling us at 415-241-9500. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the diaTribe Site infringe your copyright, you (or your agent) may send to diaTribe a written notice by mail or e-mail, requesting that diaTribe remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send diaTribe a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
- Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
- Miscellaneous. These Terms do not, and will not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and diaTribe. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer, or sublicense any of your rights or obligations under these Terms without our express prior written consent. We may assign, transfer, or sublicense any or all of our rights or obligations under these Terms without restriction. No waiver by either party of any breach or default under these Terms will be deemed a waiver of any prior or later breach or default. Any heading, caption, or section title contained herein is for convenience only, and does not define or explain any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in these Terms will be construed as if followed by the phrase “without limitation.” These Terms, including any additional terms and conditions incorporated or referenced herein, is the entire agreement between you and diaTribe about the subject matter, and supersedes any and all prior or concurrent written or oral agreements or understandings between you and diaTribe about the subject matter. Notices to you (including notices of changes to these Terms) may be made via posting to the diaTribe Site or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. diaTribe will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
diaTribe Site © 2020 The diaTribe Foundation unless otherwise noted. All rights reserved.