LAST UPDATED: May 6, 2025

Effective Date: May 6, 2025

1. INTRODUCTION

 Please read these Terms of Use (“Terms”) carefully, as they govern your use of (a) the websites, mobile applications, and other online platforms operated by Email Sender & Provider Coalition (“ESPC,” “we,” “us” or “our”) where the Terms are posted (collectively, the “Platforms”) and (b) your use of any services, features, and functionalities available on the Platforms, including any purchases you make on the Platforms (collectively, the “Services” and, together with the Platforms, the “Sites”).

These Terms represent a binding contract between ESPC and you. By using the Sites, except for the limited purpose of reviewing these Terms, you expressly represent that you (i) are at least eighteen (18) years of age and have reached the age of majority in your jurisdiction of residence and (ii) agree to be bound by these Terms. If you do not agree to be bound by these Terms, or if these Terms are not enforceable where you are located, you may not use the Sites. We would not provide the Sites without the conditions in these Terms. If you use the Sites after reviewing the Terms but later seek to repudiate them or any aspect thereof, you agree that such action would constitute a breach of these Terms, prohibiting you from enforcing any aspect of the Terms and entitling us to damages resulting from your breach.

If you are an individual using the Sites on behalf of, or for the benefit of, any corporation, partnership, or other entity with which you are associated (an “Organization”), then you are agreeing to these Terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms. In that case, references to “you” and “your” in these Terms will refer to both the individual using the Sites and to any such Organization.

Certain Services may be subject to different or additional terms, rules, guidelines, or policies (“Additional Terms”), and we may provide such Additional Terms to you via postings, pop-up notices, links, or other means. All Additional Terms are hereby incorporated by reference into these Terms. Any reference to the “Terms” herein includes the Additional Terms. From time to time, Additional Terms may conflict with these Terms. In the event of such a conflict, the Additional Terms will control.

NOTICE REGARDING ARBITRATION: PLEASE NOTE THE ARBITRATION REQUIREMENT AND CLASS ACTION WAIVER SET FORTH IN SECTION 17, WHICH, SUBJECT TO SOME LIMITED EXCEPTIONS, REQUIRES YOU AND ESPC TO ARBITRATE ANY DISPUTES (DEFINED BELOW) ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT NEITHER PARTY WILL HAVE THE RIGHT (A) FOR A JUDGE OR JURY TO DECIDE ITS CLAIMS OR (B) TO PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. 

2. INFORMATIONAL PURPOSES ONLY

The Sites are provided for general informational purposes only. The Sites are not intended to provide tax, legal, accounting, financial, medical, or any other type of professional advice. While the Sites may contain information, including perspectives and opinions, on matters related to email marketing and related legal topics, such information is general in nature and does not take into account your specific circumstances. Please seek the advice of professionals, as appropriate, regarding the evaluation of any information on the Sites.

3. ACCOUNT CREATION AND PASSWORDS

To use certain Services, you may be required to create an account on the Sites (an “Account”). You agree to provide truthful and accurate information during the Account creation process. You also agree to maintain the accuracy of any submitted data. If you provide any information that is untrue, inaccurate, or incomplete, or otherwise act in a false or misleading manner during the Account creation process, we reserve the right to suspend or terminate your Account and/or your use of the Sites.

You are responsible for preserving the confidentiality of your Account password and agree to notify us of any known or suspected unauthorized use of your Account. YOU AGREE THAT YOU ARE RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ANY PERSON WHO USES THE SITES UNDER YOUR ACCOUNT.

4. OWNERSHIP OF THE SITES

The Sites and all of their contents, including all information, text, graphics, Trademarks (defined below), icons, images, audio and video content, data compilations, and the design, selection, and arrangement thereof (collectively, the “ESPC Content”), are the exclusive property of ESPC or our licensors and may not be used or exploited in any way without prior written consent. For avoidance of doubt, all references to the “Sites” in these Terms includes the ESPC Content.

We are providing you with access to the Sites pursuant to a limited, non-exclusive, non-sublicensable, non-transferable, revocable license (the “License”). The License is available to you unless and until you or we terminate these Terms, we otherwise suspend or terminate your access to the Sites, or you are barred from using the Sites by applicable law. ESPC reserves all right, title, and interest not expressly granted under the License to the fullest extent possible under applicable law.

Under the License, you are permitted to use the Sites solely for non-commercial purposes and only in the following ways: (i) you may access and browse the Sites, and use the Services made available to you, using a device that you own or are authorized to use (a “Device”); (ii) you may download the ESPC Content from the Sites and print out a hard copy, provided that you do not modify it in any way and do not remove or alter any copyright or other notice contained thereon; (iii) you may install a copy of any mobile applications that we make available from time to time (collectively, the “Apps”) on a Device; and (iv) your Device may temporarily store copies of the ESPC Content incidental to your use of the Sites.     

You may not otherwise modify, copy, distribute, display, reproduce, sell, license, create derivative works from, use, or exploit the ESPC Content in any manner without the prior written authorization of ESPC or the relevant licensor (if applicable). Any unauthorized use of the ESPC Content may violate copyright laws, trademark laws, and other applicable laws. You agree to comply with reasonable written requests from us to help us protect our proprietary and intellectual property rights.

The ESPC Content includes the trademarks, service marks, logos, slogans, trade names, and trade dress used on the Sites (the “Trademarks”). The absence of a trademark notice or symbol indicating the registration or ownership of the Trademark does not constitute a waiver of ESPC’s or its licensors’ trademark or other rights. These Terms do not grant you any rights to use the Trademarks. Under no circumstances are you permitted to use the Trademarks in a manner that creates a likelihood of consumer confusion.

Finally, the Sites are intended for users genuinely interested in our Services. Under no circumstances may the Sites be used for the purpose of, or with the intention of, initiating litigation or arbitration, including using the Sites in order to trigger or induce an alleged violation of any law (“Litigation Purposes”). Use of the Sites for Litigation Purposes is strictly prohibited, exceeds the parameters of the License, and, as such, constitutes a breach by you of these Terms. In such circumstances, ESPC may elect to terminate these Terms, without prejudice to our ability to seek damages, including attorneys’ fees, resulting from your breach.

5. USER CONTENT & LICENSE GRANT TO ESPC

The Sites may permit users to submit, post, link, send, share, or otherwise make available (“Share”) information and content (“User Content”). User Content has not necessarily been reviewed or approved by ESPC, and we, therefore, make no representations or warranties as to the accuracy, reliability, completeness, timeliness, or any other aspect of any User Content. Any views or opinions expressed in User Content belong to the users who shared the content and not to ESPC. Your reliance on any User Content is done entirely at your own risk. YOU UNDERSTAND AND AGREE THAT WE ARE NOT RESPONSIBLE FOR, AND SHALL HAVE NO LIABILITY RELATED TO, ANY USER CONTENT, INCLUDING YOUR RELIANCE ON SUCH CONTENT.

You will retain ownership of any intellectual property rights that you own in your User Content. However, in exchange for the opportunity to use the Sites, when you Share User Content you automatically grant to ESPC a royalty-free, perpetual, irrevocable, worldwide, unlimited, sublicensable, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, display, and otherwise use and exploit your User Content for any purpose (commercial or otherwise) and in any media, medium, form, format, and forum now known or hereafter developed (the “User Content License”). We may sublicense the rights granted under the User Content License through multiple tiers of sublicenses. By sharing User Content, you represent and warrant that you possess all rights and permissions necessary to grant the User Content License to ESPC.  

User Content shall not be deemed confidential and ESPC shall not have any obligation to keep any such content confidential. You acknowledge and agree that ESPC shall be free to use any ideas, concepts, know-how, or techniques contained in User Content for any purpose whatsoever, including developing, manufacturing, and marketing products and services incorporating or based on your User Content, all without any compensation or attribution to you.

For avoidance of doubt, all User Content on the Sites is considered ESPC Content. As such, aside from the limited right to access and use the Sites and the ESPC Content granted in the License, you may not use or exploit User Content shared by another party in any way without the prior written permission of the owner of such content.

6. VIDEO CONTENT

The Sites may contain video content, audiovisual content, or content of a like nature (collectively, “Video Content”). Video Content is provided for the purpose of enhancing the user experience on the Sites and is, therefore, provided in connection with ESPC’s business activities related to email marketing. ESPC is not in the business of renting, selling, or delivering Video Content in a commercial manner. By using the Sites, you agree that ESPC is not a “video tape service provider,” as defined in the Video Privacy Protection Act (“VPPA”), 18 U.S.C.A. § 2710 or similar state laws.

Further, the Sites may include online technologies and code-based tools, including cookies, pixels, web beacons, and software development kits, that track information about your activity on the Sites (collectively, “Cookies”). Cookies may result in information about your activity on the Sites being transmitted from your browser to ESPC and to third parties, which, in turn, may result in the display of targeted advertisements on third-party websites, services, or platforms (“External Sites”). Whether Cookies on the Sites result in your browser’s transmission of information to third parties depends on a number of factors that may be outside of ESPC’s knowledge or control, including what External Sites you use, what information you have provided to External Sites, and whether (and the extent to which) you have limited the use of Cookies by the operators of External Sites.

YOU HEREBY ACKNOWLEDGE AND AGREE THAT, IF COOKIES ON THE SITES RESULT IN YOUR BROWSER’S TRANSMISSION OF INFORMATION TO EXTERNAL SITES, (I) SUCH TRANSMISSIONS DO NOT CONSTITUTE A “KNOWING DISCLOSURE” OF “PERSONALLY IDENTIFIABLE INFORMATION” BY ESPC UNDER THE VPPA AND (II) YOU WILL NOT INITIATE ANY LITIGATION OR OTHERWISE ASSERT ANY CLAIM AGAINST ESPC BASED, IN WHOLE OR IN PART, ON SUCH TRANSMISSIONS, WHETHER UNDER THE VPPA, THE CALIFORNIA INVASION OF PRIVACY ACT (CAL. PENAL CODE § 630 ET SEQ.), OR ANY OTHER STATUTE, REGULATION, OR CAUSE OF ACTION. 

7. TRANSACTIONS

You may be permitted to place orders for the purchase of products, services, or event tickets advertised on the Sites (“Orders”). If you wish to place an Order, you will be asked to supply certain information, including your name, Payment Method, and billing and shipping information (collectively, “Payment Information”).

The Payment Methods that we accept will be set forth on the Sites and may change from time to time. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT METHOD DESIGNATED FOR AN ORDER. You further agree to provide current, complete, and accurate Payment Information. You agree to promptly update your Account and/or Payment Information as necessary, so that we can complete your Order and contact you as needed. By submitting any Payment Information, you grant to ESPC the right to provide such information to third parties for purposes of facilitating the completion of your Order. Verification may be required prior to the completion of an Order.

Your placement of an Order constitutes a request to purchase the relevant product, service, or event tickets. As such, your receipt of an Order confirmation or similar acknowledgment means only that your request has been received; it does not mean that your Order has been accepted or that the price or availability of the product or service has been confirmed. We reserve the right to reject Orders and otherwise to cancel or modify Orders as we deem necessary, and we shall have no liability to you other than refunding your Order, if applicable. Without limiting the preceding sentence, we may limit or cancel quantities purchased per person, per household, or per Order. These restrictions may include Orders placed under the same name or Account, that use the same Payment Method, or that use the same billing address and/or shipping address. If we modify or cancel an Order, we will attempt to notify you via the contact information we have on file for you.

The shipping methods available for Orders will be presented on the Sites. When an Order has been confirmed, accepted, and processed, we will ship the Order according to the applicable shipping method.

You agree to pay all charges incurred by you or on your behalf through the Sites at the price in effect when incurred, including any shipping charges. You are solely responsible for any taxes applicable to your Order, regardless of whether tax is included in the purchase price on the Sites. Further, it is your responsibility to comply with all applicable laws concerning the receipt, possession, and use of any product, service, or event tickets purchased from the Sites. Any offer for any product, service, or event tickets made on the Sites is void where prohibited.

8. SERVICE INFORMATION; ERRORS & INACCURACIES

The Sites may contain errors, inaccuracies, or omissions (“Errors”) and such Errors may relate to information about our services, including descriptions, pricing, promotions, offers, and availability (collectively, “Service Information”). Certain products, services, or event tickets offered on the Sites may have limited quantities, may not always be available, and/or may be available only in certain geographic areas. 

We reserve the right to correct any Errors and to otherwise change or update the information on the Sites, including the Service Information, at any time and without prior notice. In the event that any Errors affect an Order you have placed and we do not cancel the Order (which we have the right but not the obligation to do), your sole remedy is to request a refund of your Order, to the extent available under any applicable ESPC policies. All prices displayed on the Sites are in U.S. Dollars and are subject to change without notice.

9. USER CONDUCT

By using the Sites, you agree not to Share any User Content or otherwise use the Sites in any manner that:

• Is designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment (including by means of software viruses or any other computer code, files, or programs);
• Interferes with or disrupts the proper functioning of the Sites;
• Infringes any copyright, trademark, trade secret, patent, or other right of any party, including the publicity and privacy rights of any person (living or deceased);
• Consists of any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation;
• Causes ESPC to lose (in whole or in part) the services of our Internet service providers or other suppliers;
• Links to materials or other content, directly or indirectly, to which you do not have a right to link;
• Is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, defamatory, hateful, or discriminatory on the basis of race, religion, ethnicity, nationality, sex, sexuality, gender, age, or disability;
• Is designed to gain access to Services that you are not authorized by ESPC to access;
• Copies, modifies, creates a derivative work of, reverse engineers, decompiles or otherwise attempts to extract the source code of the software underlying the Sites or any portion thereof;
• Violates, or encourages anyone to violate, these Terms or any applicable law, regulation, or order.

ESPC has the right, but not the obligation, to monitor the Sites for the purpose of determining and enforcing compliance with these Terms. Further, ESPC shall be free to delete, remove, modify, or refuse to post any User Content if we determine that the content violates these Terms.

You agree that ESPC has the right to (i) disclose your identity or other relevant information about you to any third party who claims that User Content Shared by you violates their rights; (ii) take legal action, including referral to law enforcement, with respect to any suspected illegal or unauthorized use of the Sites; and (iii) cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or information of any user of the Sites.

YOU HEREBY WAIVE ANY CLAIMS RELATED TO OR RESULTING FROM ANY ACTION OR INACTION OF ESPC WITH RESPECT TO (I) MONITORING THE SITES; (II) DELETING, REMOVING, MODIFYING, OR REFUSING TO POST ANY USER CONTENT; (III) DETERMINING OR ENFORCING COMPLIANCE WITH THESE TERMS; AND (IV) COOPERATING WITH LAW ENFORCEMENT OR A COURT ORDER CONCERNING ANY MATTER RELATED TO THE SITES. YOU FURTHER AGREE THAT ESPC SHALL NOT BE LIABLE TO YOU WITH RESPECT TO ANY OTHER USER’S CONDUCT THAT IS PROHIBITED UNDER THESE TERMS.  

Notwithstanding the use restrictions in this Section 9, nothing in these Terms shall prohibit or restrict your ability to (i) make any “statement” protected by Cal. Civ. Code § 1670.8; (ii) engage in a “covered communication” as defined by the Consumer Review Fairness Act, 15 U.S.C.A. § 45b; or (iii) express or publish any review, performance assessment, or similar analysis (collectively, “Reviews”) about ESPC, its employees or agents, or its products or services, to the extent that such Reviews are protected under applicable law.

10. LINKS TO THE SITES

You are permitted to establish a hyperlink to the homepage of the Sites, provided that (i) you do so in a manner that is legal and does not state or imply any endorsement of or affiliation with the originating website, application, or service (the “Originating Site”) by ESPC; (ii) the Originating Site contains no content that you would be prohibited from Sharing pursuant to these Terms or any applicable law; (iii) the Originating Site is owned by you or you have express written consent from the owner to establish the link; and (iv) you do not establish a deep-link or otherwise link to any page other than the homepage of the Sites. You agree to cooperate with us as requested to remove any links that we determine violate these Terms. We reserve the right to withdraw linking permission at any time and without notice.

11. LINKS TO EXTERNAL SITES

The Sites may contain links or otherwise facilitate access to External Sites. We are not responsible for the availability of External Sites, nor do we endorse the content, goods, or services provided by or on External Sites. Any terms and conditions and policies applicable to an External Site are set by the operator of the External Site and not by ESPC. UNDER NO CIRCUMSTANCES SHALL WE BE HELD RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED BY YOUR USE OF ANY EXTERNAL SITES.

12. PRIVACY

Your submission of personal information through the Sites is governed by our Privacy Policy, which is hereby incorporated into these Terms by reference.

As such, by using the Sites after reviewing these Terms, you are representing to ESPC that you understand and accept how we collect, use, and disclose information concerning your use of the Sites, as set forth in our Privacy Policy. You understand and agree that (a) ESPC is justifiably relying on this representation in granting you access to the Sites and (b) if you later take legal action inconsistent with this representation, such action will constitute evidence that your representation was false. In that case, ESPC may elect to terminate these Terms, without prejudice to our ability to seek damages resulting from your breach. If you do not agree to the practices described in our Privacy Policy, you may not use the Sites or provide us with any information.

13. SMS MARKETING

By consenting to ESPC’s SMS program (the “SMS Program”) on the Sites or via other subscription tools we provide, you are agreeing to receive recurring text messages regarding marketing offers, transactional matters (including related to your orders and Account), and any other matters related to the Sites, even if your mobile number is registered on a state or federal do-not-call list. Message frequency varies. Consent to the SMS Program is not a condition of any purchase from us.

If you wish to stop receiving text messages from ESPC, reply with STOP to any text message sent from us or use the unsubscribe link provided to you within our commercial email messages. You understand and agree that alternate methods of opting out, such as using different words or requests, will not be considered a reasonable means of opting out and may not be honored. We do not charge for the SMS Program, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. For any questions, please text HELP in response to any of our messages or reach out to us at the contact information provided in these Terms.

We have the right to modify any telephone number or short code we use to operate the SMS Program at any time. You will be notified on such occasions. You agree that any messages you send to a telephone number or short code we have changed, including any STOP or HELP requests, may not be received, and we will not be liable for honoring requests made in such messages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT WE WILL NOT BE LIABLE FOR FAILED, DELAYED, OR MISDIRECTED DELIVERY OF ANY INFORMATION SENT THROUGH THE SMS PROGRAM, ANY ERRORS IN SUCH INFORMATION, AND/OR YOUR RELIANCE ON THE INFORMATION OR SMS PROGRAM.

14. DISCLAIMER OF WARRANTIES

A) THE SITES

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SITES ARE PROVIDED "AS IS." ESPC MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU OR ANY OTHER PARTY, RELATING IN ANY WAY TO THE SITES. FOR AVOIDANCE OF DOUBT, ESPC DISCLAIMS ANY IMPLIED WARRANTIES THAT THE SITES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ESPC OR A REPRESENTATIVE SHALL CREATE A WARRANTY.

WITHOUT LIMITING THE PRECEDING PARAGRAPH, WE DO NOT GUARANTEE THAT (I) THE SITES WILL MEET YOUR REQUIREMENTS OR BE WITHOUT INTERRUPTION OR AVAILABLE AT ALL TIMES OR LOCATIONS OF YOUR CHOOSING OR; (II) THE ESPC CONTENT WILL BE ACCURATE, ERROR FREE, TIMELY, COMPLETE, OR RELIABLE. IT IS YOUR RESPONSIBILITY TO EVALUATE ANY INFORMATION, OPINION, ADVICE, OR OTHER CONTENT AVAILABLE ON OR THROUGH THE SITES AND TO CONSULT PROFESSIONALS AS NEEDED IN SUCH EVALUATION.

B) PRODUCTS & SERVICES

YOU UNDERSTAND AND AGREE THAT, UNLESS WE EXPRESSLY STATE IN WRITING THAT A WARRANTY APPLIES, THE PRODUCTS, SERVICES, AND EVENT TICKETS AVAILABLE ON THE SITES ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION, WARRANTY, OR GUARANTEE OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.

C) ADDITIONAL RIGHTS

SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE EXCLUSIONS IN THIS SECTION 14 MAY NOT APPLY TO YOU. FOR CLARIFICATION, NOTHING IN THESE TERMS SEEKS TO EXCLUDE ANY WARRANTIES THAT CANNOT BE EXCLUDED BY APPLICABLE LAW. YOU AGREE, HOWEVER, THAT THE TERMS OF THIS SECTION 14 SHALL APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

15. OUR LIABILITY TO YOU

A) LIMITATION OF LIABILITY

YOU AGREE THAT ESPC, ITS OFFICERS, SHAREHOLDERS, MANAGERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, AND LICENSORS (THE “RELEASED PARTIES”) SHALL NOT BE LIABLE FOR THE FOLLOWING DAMAGES (IF ANY) ARISING IN CONNECTION WITH YOUR USE OF (OR INABILITY TO USE) THE SITES OR ANY PRODUCTS OR SERVICES OBTAINED BY YOU THROUGH THE SITES: (I) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, STATUTORY, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (II) LOSS OF USE, DATA, BUSINESS, REVENUE, OR PROFITS, IN ALL CASES WHETHER DIRECT OR INDIRECT; (III) DAMAGES, INCLUDING FOR ANY DELAY OR FAILURE IN PERFORMANCE, ARISING FROM CAUSES BEYOND THE REASONABLE CONTROL OF THE RELEASED PARTIES;  (IV) DAMAGES ARISING FROM THE CONDUCT OF OTHER USERS OF THE SITES OR THEIR USER CONTENT; (V) OR DAMAGES RELATING TO THE DELAY, FAILURE, INTERRUPTION, DISCLOSURE, OR CORRUPTION OF ANY DATA OR INFORMATION TRANSMITTED IN CONNECTION WITH THE SITES.

FURTHER, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE RELEASED PARTIES IN CONNECTION WITH ANY DISPUTE (DEFINED BELOW) EXCEED THE GREATER OF (I) $100 USD OR (II) THE AMOUNT YOU PAID TO ESPC IN CONNECTION WITH YOUR USE OF THE SITES IN THE 12-MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CLAIM RELATED TO THE DISPUTE AROSE. 

THE LIMITATION OF LIABILITY IN THIS SECTION 15 APPLIES REGARDLESS OF LEGAL THEORY, EVEN IF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FURTHER, YOU UNDERSTAND AND AGREE THAT THE LIMITATION OF LIABILITY IN THIS SECTION 15 IS AN ESSENTIAL ASPECT OF OUR ABILITY TO PROVIDE THE SITES TO YOU AND THAT WE WOULD NOT BE ABLE TO DO SO WITHOUT IT.

B) ADDITIONAL RIGHTS

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN DAMAGES, SO SOME OF THE LIMITATIONS OR EXCLUSIONS IN THIS SECTION 15 MAY NOT APPLY TO YOU. FOR CLARIFICATION, NOTHING IN THESE TERMS SEEKS TO EXCLUDE OR LIMIT ANY DAMAGES OR LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. YOU AGREE, HOWEVER, THAT THE TERMS OF THIS SECTION 15 SHALL APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

16. INDEMNIFICATION

You agree to indemnify, hold harmless, and (at ESPC’s option) defend ESPC from and against any and all liabilities, claims, damages, costs, and expenses, including attorneys’ fees and costs, arising from or related to: (i) your breach of any of these Terms; (ii) any User Content you Share; and (iii) your violation of any law or the rights of a third party.

We reserve the right to assume exclusive defense and control of any matter otherwise subject to indemnification by you and you agree to cooperate with us if and as requested by us in the defense and settlement of such matter. In any case, you agree never to settle any matter for which your indemnification is required absent our prior written consent.

Separately, if you initiate (or threaten to initiate) any litigation, arbitration, or otherwise assert any claim against the Released Parties that is based or relies, in whole or in part, upon a repudiation or breach of any promises, representations, warranties, agreements, or consents that you have made to or with ESPC pursuant to these Terms (collectively “Prohibited Legal Actions”), you agree to indemnify the Released Parties from and against any and liabilities, claims, damages, costs, and expenses, including attorneys’ fees and costs, arising from or related to the Prohibited Legal Action, regardless of the legal theory of the Prohibited Legal Action and whether it is brought or asserted individually or as part of a collective or class proceeding.

17. DISPUTES & ARBITRATION

If there is any controversy, claim, action, or dispute between you and ESPC arising out of or related to your use of the Sites (including any products, services, or event tickets purchased on the Sites) or the breach, enforcement, interpretation, or validity of these Terms or any part of them (“Dispute”), you and ESPC agree to resolve the Dispute through the dispute resolution procedures set forth in this Section 17, even if the Dispute arose prior to the Effective Date of these Terms.

A) Informal Dispute Resolution

You and ESPC agree to first attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve the Dispute informally. The party with the complaint (the “Complaining Party”) shall send written notice to the other party (the “Receiving Party”) describing the facts and circumstances of the Dispute (a “Dispute Notice”). 

All Dispute Notices must: (1) be signed by the Complaining Party; (2) include the Complaining Party’s name, physical address, and email address; (3) describe with specificity the nature and basis of the Dispute in a manner sufficient for the Receiving Party to evaluate the merits of the Complaining Party’s individualized claim, and (4) set forth the alleged damage and harm suffered and the specific relief sought with a calculation for it. Each Dispute Notice is limited to a single Dispute between you and ESPC. As such, your Dispute and the Disputes of other parties may not be combined into a single Dispute Notice.   

Dispute Notices shall be sent to:

• To ESPC: You must send notice (1) by electronic mail to privacy@espcoalition.org and (2) by first-class or certified mail to ArentFox Schiff c/o D. Reed Freeman, 1717 K Street NW, Washington, DC 20006.

• To You: We will send notice by (1) first class or certified mail to the physical address we have on file for you (if any) and (2) by email to the email address we have on file for you (if any). If we do not have any address on file for you, or if we are, for any reason, unable to provide notice via the contact information on file, we reserve the right to provide notice by other reasonable means.

You and ESPC will attempt to resolve the Dispute through informal negotiation within sixty (60) days beginning on the date that a valid Dispute Notice is sent (the “Informal Negotiation Period”). During the Informal Negotiation Period, the parties are required to conduct an individual meet-and-confer in person, or via teleconference or videoconference, that addresses only the Dispute between you and ESPC (the “Conference”). If you are represented by counsel, your counsel may participate in the Conference, but you will also need to participate. ESPC will participate in the Conference through one or more representatives, which may include our counsel.

Both you and ESPC agree that the foregoing dispute resolution procedure (the “Informal Dispute Resolution Procedure”) is a condition precedent that must be satisfied before initiating any arbitration or litigation against the other party. If any aspect or requirement of the Informal Dispute Resolution Procedure has not been completed or satisfied, the parties agree that (i) a court of competent jurisdiction can enjoin the filing or prosecution of any arbitration or litigation and (ii) unless prohibited by law, no arbitration administrator shall accept or administer any arbitration or demand fees in connection with the Dispute.

B) Individual Arbitration

IF ANY DISPUTE CANNOT BE RESOLVED BY THE INFORMAL DISPUTE RESOLUTION PROCEDURE, YOU AND ESPC AGREE THAT SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT NEITHER PARTY WILL HAVE, AND YOU AND ESPC EACH HEREBY WAIVE, THE RIGHT TO HAVE A JUDGE OR JURY DECIDE ITS CLAIMS, AND THAT NEITHER YOU NOR ESPC IS PERMITTED TO PROCEED IN A CLASS, CONSOLIDATED, COLLECTIVE, OR REPRESENTATIVE CAPACITY. OTHER RIGHTS THAT YOU AND WE WOULD OTHERWISE HAVE IN COURT WILL NOT BE AVAILABLE OR WILL BE MORE LIMITED IN ARBITRATION, INCLUDING DISCOVERY AND APPEAL RIGHTS.

All such Disputes shall be exclusively submitted to Judicial Arbitration and Mediation Services (JAMS) (www.jamsadr.com) for binding arbitration under its rules then in effect (as modified by these Terms), before one arbitrator to be mutually agreed upon by both parties (a Dispute submitted to JAMS for arbitration being a “Demand for Arbitration”). The arbitration shall be conducted in accordance with the JAMS Consumer Arbitration Minimum Standards (the “Minimum Standards”) if (and only if) it is determined by JAMS or the arbitrator that the Minimum Standards are applicable to the Dispute. The Minimum Standards are available at www.jamsadr.com/consumer-minimum-standards. The location of any hearings will be determined by the applicable JAMS rules, provided that if the claim is for $5,000 or less, you may choose to (a) have the arbitration conducted solely on the basis of the documents submitted to the arbitrator or (b) hold a hearing by teleconference or videoconference.

The arbitrator, and not any court or agency, shall have exclusive authority to resolve any Dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms is void or voidable. For the avoidance of doubt, you and ESPC agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of this Section 17 or the arbitrability of any claim or counterclaim. The award rendered by the arbitrator may be confirmed and enforced in a court of competent jurisdiction.

C) Mass Arbitration

 This Section 17(C) applies to Mass Arbitrations (defined below) and supersedes any provision to the contrary in these Terms.

If you or ESPC files a Demand for Arbitration that is one of fifty (50) or more similar Demands for Arbitration filed against the other party (i.e., against you or ESPC, as applicable) by parties represented by the same law firm or law firms acting in coordination (“Mass Arbitration”), the arbitration of the Dispute, and all other Disputes constituting the Mass Arbitration, shall be conducted in accordance with the JAMS Mass Arbitration Procedures and Guidelines, including the JAMS Mass Arbitration Fee Schedule (the “Mass Arbitration Procedures”). The Mass Arbitration Procedures are available at www.jamsadr.com/mass-arbitration-procedures.

You and ESPC agree that, in the event of a Mass Arbitration, any issues arising under or relating to (a) the interpretation, applicability, enforceability, or formation of these Terms, including any claim that all or any part of these Terms are void or voidable or (b) the jurisdiction of the arbitrator, including any objections with respect to the existence, scope, or validity of this Section 17 or the arbitrability of any claim or counterclaim, shall be decided by a court of competent jurisdiction.  

D) Exceptions

Notwithstanding any other provision of this Section 17, you or ESPC may (a) bring an individual claim or elect to resolve a Dispute in small claims court in the United States consistent with any applicable jurisdictional and monetary limits that may apply (so long as the action is litigated exclusively in small claims court and is not removed or appealed to a court of general jurisdiction) and (b) file an individual claim in court to (i) enjoin the infringement or other misuse of its intellectual property rights or (ii) seek a declaration that the other party is in breach of these Terms. You and ESPC agree that any claims referenced in the preceding sentence must be brought and maintained on an individual basis.

In addition, nothing in these Terms prohibits you or us from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf (or vice versa).

18. CHOICE OF LAW AND CHOICE OF FORUM

 A) Choice of Law

These Terms and your use of the Sites shall be governed by the laws of the United States and the state of Virginia, without giving effect to any conflict of laws principles that would result in the application of the laws of any other jurisdiction. Any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).

B) Choice of Forum

Except for claims properly lodged in a small claims court in the United States, any Disputes not subject to arbitration pursuant to Section 17, including those referenced in Section 17(D), shall be resolved by a court located in Virginia and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such Dispute.

19. JURISDICTION

ESPC controls and operates the Sites from within the United States and makes no representation or warranty that the Sites are appropriate or available for use or access in any location outside of the United States. Anyone using or accessing the Sites from outside the United States does so on their own risk and is responsible for compliance with all applicable laws and regulations, including U.S. and international export control laws and regulations.

20. CHANGES TO THE SITES & TERMS

 A) Changes to these Terms

We reserve the right to modify these Terms at any time. When we do so, we will update the “Effective Date” above. For material changes, we will seek to supplement such notice by email, a pop-up message on the Sites, another prominent notice on the Sites, or by other reasonable means. Your use of the Sites following any changes to these Terms will constitute your acceptance of the Terms as modified.

B) Termination of these Terms

These Terms will continue to apply until terminated by either you or ESPC. We may terminate these Terms or suspend, or terminate your access to the Sites, at any time if (a) we believe you have breached any of these Terms, (b) we stop providing the Sites or any material component thereof, or (c) as we believe necessary to comply with applicable law. You may terminate these Terms at any time by emailing privacy@espcoalition.org. If you or we terminate these Terms, or if we suspend or terminate your access to the Sites, you agree that (a) your right to access and use the Sites ceases immediately, (b) we shall have no liability to you in connection with such suspension or termination, and (c) except as expressly provided otherwise by ESPC, we will not refund any amounts that you have already paid to us.

The following provisions shall survive the termination of these Terms: Sections 1, 4, 5, 6, 9, 12, 14, 15, 17, 18, 21, and any other provisions of these Terms that, either explicitly or by their nature, must remain in effect even after termination of these Terms.

C) Changes to the Sites

We also may change, restrict access to, suspend, or discontinue the Sites, or any portion of the Sites, at any time and without notice to you. You acknowledge and agree that ESPC will not be liable for any such actions.

21. MISCELLANEOUS

 A) Interpretation

In these Terms, the words “include,” “includes,” and “including” are used in an illustrative sense and shall be construed as if followed by “without limitation.” Titles and headings to sections herein are included for convenience only and are not intended to affect the meaning or interpretation of these Terms. Any limited or specific disclaimers or limitations of liability found in these Terms shall not limit the effect, force, or breadth of any other disclaimers or limitations of liability in these Terms. When these Terms refer to a decision or action that will or may be made or taken by ESPC, such decision or action shall be made, taken, or refrained from in ESPC’s sole discretion and judgment.

B) No Waiver

If ESPC does not exercise or enforce any legal right or remedy which is contained in these Terms (or which ESPC has the benefit of under any applicable law or regulation), such action or inaction shall not be deemed a formal waiver of ESPC’s rights, and all such rights or remedies shall still be available to ESPC.

C) Severability

If any provision of these Terms is held to be invalid by a court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. 

D) Entire Agreement

These Terms and any Additional Rules set forth the entire understanding and agreement between us with respect to your use of the Sites.

 E) Assignment

You may not assign, transfer, or sublicense any or all 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.

 F) No Relationship

These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between you and ESPC.

G) Notice to California Residents.

The following terms apply to California residents:

H) Admissibility

You agree that a printed version of these Terms and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms or your use of the Sites to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

22. CONTACT US

 If you have any questions, comments, or concerns about these Terms, please contact us at: privacy@espcoalition.org.