Last Modified: May 25th, 2019.
I. PRELIMINARY PROVISIONS: Don’t be taken aback by the comprehensive nature of these terms & conditions. They are intended to protect Us as well as You.
a) What This Agreement Is –
This Agreement is a legal contract between You and the publisher of this website, PATTBERG.ORG.
You should treat this agreement as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. By accessing the PATTBERG.ORG site network in any manner, You are affirmatively agreeing to be bound by all of the terms contained in this User Agreement. You may not pick and choose which terms apply to You. If You do not agree with all of the terms in this Agreement, You must cease all access and use of the Site.
b) Party Definitions and Introductory Terms –
The operative parties referred to in this Agreement are as follows:
i. Us, the Publisher – PATTBERG.ORG is the publisher of this website, which is known as pattberg.org or The East-West Writer Website.
Hereinafter, when first-person pronouns are used in this Policy, (us, we, our, ours, etc.) they are referring to PATTBERG.ORG as publisher and owner of the applicable website. This entity may also be referred to as “Publisher” from this point forward. Additionally, when the terms “Website” or “Site” are used, these terms refer to this website.
ii. You, the User – As the user of this Site, this User Agreement will refer to the User as “You” or through any second-person pronouns, such as “Your,” or any derivation thereof. Hereinafter, the User of the Site shall be referred to in applicable second-person pronouns.
The following individuals or organizations are “blacklisted” and may NEVER read any posts on our network, nor may they ever use any materials from our network, without prior written permission:
- Any person who has been explicitly instructed to not contact me via email.
Any unauthorized use is a violation of 18 U.S.C. Section 1030 and will be prosecuted as such.
- Consideration – Consideration for Your acquiescence to all of the provisions in this Agreement has been provided to You in the form of allowing You to use Our Sites and the information thereupon. You agree that such Consideration is adequate, and that it is received upon your viewing or downloading any portion of any content on the Site.
c) Electronic Signatures / Assent Required –
Nobody is authorized to access this Site unless they have signed this Agreement. Such signature does not need to be a physical signature, since this Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (E-Sign Act). You manifest Your agreement to this User Agreement by taking any act demonstrating Your assent thereto. Reading or accessing this website, clicking any link thereupon, or placing a comment on this blog manifests your intent to be bound by all of these Terms & Conditions. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract.
If You fail to assent to this Agreement, You understand that You are an unauthorized user of the Site. No act or omission by the Publisher should be interpreted as a waiver of the requirement that You assent to this User Agreement. If You fail to do so, You are still bound by the terms of this Agreement by virtue of Your viewing the Site or using any portion of the Site or Publisher’s services. However, if You access this website and fail to assent to this Agreement, You stipulate to and agree to pay the Publisher $50.00 for each time You have accessed the Site as liquidated damages for unauthorized access and use, and You agree to pay all of D&P’s costs and expenses, including Attorney’s fees and costs, incurred in collecting this unauthorized access fee from You.
d) Revisions to this User Agreement –
- From time to time, PATTBERG.ORG may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect.
- We agree that if We change anything in this Agreement, We will change the “last modified date” at the top of this Agreement. You agree to re-visit this web page on a weekly basis, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed, and you agree that you will re-review the Agreement in its entirety and that you will agree to its terms or immediately cease use of any websites in the Network.
- Waiver – if You fail to re-review this Agreement as required to determine if any of the terms have changed, You assume all responsibility for such omissions and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
II. RESTRICTIONS ON USE OF NETWORK and SITES:
You agree that You will only use the Network and Sites therein for purposes expressly permitted and contemplated by this User Agreement, namely academic research, discussion, and political commentary. You may not use the Site for any other purpose without Our express, prior written consent.
III. DISCLAIMER AND INDEMNIFICATION:
a) You also agree to defend and indemnify Us should any third party be harmed by Your illegal or tortious actions or should We be obligated to defend any claims including, without limitation, any criminal or civil action brought by any party.
b) You agree to defend, indemnify, and hold harmless the Publisher, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your (or while under another person’s authority including without limitation to governmental agencies), use, misuse, or inability to use the Site or any of the Materials contained therein, or Your breach of any part of this User Agreement.
IV. LIMITATION OF LIABILITY:
In no event shall PATTBERG.ORG (or its licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to You, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including (but not limited to), damages for loss of profits, loss of information, business interruption, revenue, defamation, invasion of privacy, or infliction of emotional distress (intentional or negligent), which may arise from any person’s use, misuse, or inability to use the Site or any of the materials contained therein, even if Publisher has been advised of the probability of such damages.
V. LINKS AND LINKING:
a) Some websites which are linked to the Site are owned and operated by third parties. Because the Publisher has no control over such websites and resources, You acknowledge and agree that Publisher is not responsible or liable for the availability of such external websites or resources, and does not screen or endorse them, and is not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.
b) You further acknowledge and agree that Publisher shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods or services available on or through any such website or resource. If You decide to access any such third-party website, You do so entirely at Your own risk and subject to any terms and conditions and privacy policies posted therein.
d) Links to external websites or inclusions of advertisements do not constitute an endorsement by the Publisher of such websites or the content, products, advertising, or other materials presented on such Site, but are for user’s convenience.
e) You hereby agree to hold the Publisher harmless from any and all damages and liability that may result from the use of links that may appear on the Site.
VI. TRADEMARK INFORMATION:
a) Publisher and the aforementioned name of the Site may be a service mark and/or trademark of the Site. The name of the Site and the name of the Publisher are considered trademarks owned by the Publisher.
b) Other manufacturers’ product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners, and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks. If your use would be Fair Use or otherwise privileged, your use is permitted. However, you bear the risk of suit and you will indemnify and defend us in the event that suit or an arbitration is filed due to your use.
VII. COPYRIGHT INFORMATION:
a) The Materials accessible from the Site, and any other World Wide Website owned, operated, licensed, or controlled by PATTBERG.ORG’s proprietary information and valuable intellectual property and PATTBERG.ORG retains all right, title, and interest in the Materials and in all of its websites.
VIII. NOTICE OF CLAIMED INFRINGEMENT:
The Publisher respects the intellectual property of others, and We ask our users to do the same. We voluntarily observe and comply with the United States’ Digital Millennium Copyright Act. If You believe that Your work has been copied or used in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide Publisher’s Designated Copyright Agent the following information:
a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b) Description of the copyrighted work or other intellectual property that You claim has been infringed;
c) A description of where the material that You claim is infringing is located on a Site;
d) Your address, telephone number, and email address;
e) A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
f) A statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
g) When the Designated Agent receives a valid Notice, the Publisher will expeditiously remove and/or disable access to the infringing material and shall notify the affected user. Then, the affected user may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of the material. After the Designated Agent receives the counter-notification, it will replace the material at issue within ten to fourteen (10-14) days after receipt of the counter-notification unless the Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity.
IX. DEFAMATION OR INVASIVE MATERIAL POLICY:
By accessing the website, you acknowledge and stipulate that you agree to employ the following allegedly defamatory or invasive content policy.
You hereby agree that any cause of action taken against PATTBERG.ORG shall be governed by the California Anti-SLAPP statute ( CCP § 425.16), regardless of jurisdiction, and you agree that you will not challenge this choice of law provision. It works for you, it works for us, and we all will work together. You also agree that if you bring any lawsuit against us, that California law will apply to that dispute. You agree that any claim will be brought in California, in the state or federal courts in Orange County. If you bring any claim against us elsewhere, you still agree that the California Anti-SLAPP statute applies to any claims you bring.
You agree that we shall have 14 business days after RECEIPT of said notice to evaluate your concerns. During that time period, we will evaluate your concerns.
After evaluating your concern, we will either inform you that we do not believe your concern is valid, or we will request your preference regarding an opportunity to cure your concerns. This cure may include one of the following:
-We may offer to delete the offending material.
-We may offer to modify the offending material.
-We may offer you the opportunity to publish a rebuttal to the offending material.
-We will engage you and seek any other alternative resolution that will mitigate your hurt feelings or damaged legal interests – whether or not we are legally required to do so.
You acknowledge and agree that upon such offer being made to you, you will be considered to have engaged in settlement discussions with us, and will not file suit while a non-adversarial resolution is in progress. You agree that you will not file suit unless and until we issue a statement to you that we have taken our final action, and that no further action will be taken without adversarial proceedings. At that point, you may proceed with arbitration as provided for under this Agreement.
You acknowledge that once you accept any of our offers of non adversarial resolution, that you irrevocably waive any and all possible claims for any allegedly offending material on this site and that if you do bring any action against PATTBERG.ORG or any of its principals, affiliates, officers, or employees, that you hereby stipulate that you will bear your own costs and fees incurred in the action, regardless of the outcome of that action and that you stipulate that your damages will be limited to $1, and no more, and that you hereby acknowledge that such amount of $1 is sufficient and adequate.
X. COMMUNICATIONS NOT PRIVATE:
a) Publisher does not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to Publisher shall be deemed to be readily accessible to the general public. You should not use this Site to transmit any communication for which the sender intends only the sender and the intended recipient(s) to read. Notice is hereby given that all messages entered into this Site can and may be read by the agents and operators of this service, regardless of whether they are the intended recipients of such messages.
b) EXCEPTION – If confidentiality in any communication is requested, we will endeavor to protect said confidentiality. However, absent a specific request, confidentiality should not be presumed. Blog Comments are always accessible to the public, and are never private.
XI. MISCELLANEOUS PROVISIONS:
a) You agree that any arbitrator or court that takes jurisdiction over any dispute involving PATTBERG.ORG must apply anti-SLAPP principles to any action as those principles are articulated under California Law, and the California Anti-SLAPP statute. You hereby stipulate that the California Anti-SLAPP statute (CCP § 425.16) and any successor provisions and any interpretive decisions apply to any dispute between You and PATTBERG.ORG.
b) If you wish to be exempt from any of the provisions in this Agreement, you may purchase an exemption from any provision in this Agreement for $5,000 per paragraph or portion thereof. Such payment must be delivered and received by us prior to your exemption taking effect, and we must provide you with an original, signed and dated exemption form prior to the exemption taking effect. If, at any time, you claim that any provision does not apply to you, you agree that you will pay this $5,000 fee within 7 days of making any such claim.
c) Arbitration – If there is a dispute between you and PATTBERG.ORG arising out of or otherwise relating to this website, content thereupon, or any provision of this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party may submit the issue to arbitration. The arbitration shall be in the Orange County Arbitration program, which limits awards to $50,000. Under no circumstances shall arbitration be conducted by using JAMS, nor shall any retired judge ever be empowered to be the arbitrator.
The arbitration shall be conducted in Orange County, California. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of these Terms and Conditions; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts, as well as the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding.
d) No Waiver of Right to Arbitration – There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving party to the other party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.
e) The First Amendment Applies fully to Arbitration Proceedings – Any arbitration tribunal shall consider the First Amendment to the United States Constitution to be in force and effect between the parties. Both parties stipulate to the applicability of the First Amendment’s protection of free speech, expression, and association, and both parties stipulate that case law interpreting the First Amendment shall be admissible and considered to be binding authority upon the Arbitrator.
f) Governing Law – These Terms and Conditions and all matters arising out of, or otherwise relating to, this User Agreement shall be governed by the laws of California. However, the parties agree that The Arbitrator or Court shall apply First Amendment precedent from all jurisdictions as binding authority so as to provide the broadest possible protection for all expression protected by the First Amendment.
g) Jurisdiction and Venue: The sum of this paragraph is that any and all disputes must be, without exception, be resolved in Orange County, California. This is mandatory.
- All parties to this Agreement agree that all actions or proceedings arising in connection with this Agreement or any services or business interactions between the parties that may be subject to this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Orange County, California.
- The parties agree to exclusive jurisdiction in, and only in, Orange County, California.
- The parties agree to exclusive venue in, and only in, Orange County, California.
- The parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in a jurisdiction other than Orange County, California.
- All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
- All parties stipulate that the state and federal courts with jurisdiction over Orange County, California shall have personal jurisdiction over them for the purpose of litigating any dispute, controversy, or proceeding arising out of (or related to) this Agreement and/or the relationship between the parties contemplated thereby.
- Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
- Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary.
- The parties stipulate the California Anti-SLAPP provisions apply to this site and the Arbitrator or Court must take note of this stipulation.
h) Assignment – The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be.
i) Severability – If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this User Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this User Agreement will continue in full force and effect.
j) Attorneys’ Fees – In the event of any dispute between you and us, you agree that both parties shall bear their own costs and attorneys fees except in the event that an Anti-SLAPP motion is filed and is successful. Anti-SLAPP losses come with fees.
k) No Waiver – No waiver or action made by the Publisher shall be deemed a waiver of any subsequent default of the same provision of this User Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this User Agreement.
l) Headings – All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this User Agreement.
m) Complete Agreement – This User Agreement constitutes the entire agreement between the parties with respect to Your access and use of the Site and the Materials contained therein, and Your Membership with the Site, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.
n) Other Jurisdictions – Publisher makes no representation that the Site or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Site from such locations do on their own initiative and are solely responsible for determining compliance with all applicable local laws.
o) Stipulated Liquidated Damages –
- In various provisions in this Agreement, We have outlined liquidated damages amounts to be applied as penalties against You if You violate these specific provisions. You specifically agree to pay these amounts. In agreeing to pay liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties’ good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
- For any breach of a portion of this Agreement that does not specifically state a liquidated damages amount, You hereby agree that any breach of this Agreement shall result in liquidated damages of $1000.00 per occurrence. You specifically agree to pay this $1000.00 in liquidated damages.
- If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages or in order to seek injunctive relief from You. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
This privacy notice discloses the privacy practices for PATTBERG.ORG. This privacy notice applies solely to information collected by this website. It will notify you of the following:
We are the sole owners of the information collected on this site. We only have access to/collect information that you voluntarily give us via email or other direct contact from you. We will not sell or rent this information to anyone.
We will use your information to respond to you, regarding the reason you contacted us. We will not share your information with any third party outside of our organization, other than as necessary to fulfill your request, e.g. to ship an order.
Your Access to and Control Over Information
You may opt out of any future contacts from us at any time. You can do the following at any time by contacting us via the email address or phone number given on our website:
See what data we have about you, if any.
Change/correct any data we have about you.
Have us delete any data we have about you.
Express any concern you have about our use of your data.
We take precautions to protect your information. When you submit sensitive information via the website, your information is protected both online and offline.
Wherever we collect sensitive information, that information is transmitted to us in a secure way. You can verify this by looking for a lock icon in the address bar and looking for “https” at the beginning of the address of the Web page.
While we use encryption to protect sensitive information transmitted online, we also protect your information offline. Only employees who need the information to perform a specific job (for example, billing or customer service) are granted access to personally identifiable information. The computers/servers in which we store personally identifiable information are kept in a secure environment.