Data Privacy and Use Policy
Last updated: 2015-06-30 at 9:30 AM PDT.
Nevada Palace, LLC dba Eastside Cannery Casino & Hotel and its related or affiliated companies (“Eastside Cannery”) are dedicated to providing informative and useful products and services through online, mobile, and other software and related systems and platforms (collectively, the “System”), including, without limitation, on and through the domain name www.eastsidecannery.com, the mobile application titled Cannery Casino and Eastside Cannery Casino and/or other Systems designated by Eastside Cannery from time to time. As a part of the operation of the System, Eastside Cannery gathers certain information about users. This Data Privacy and Use Policy applies to the System and governs data collection and usage at, on and through the System. Please read this Data Privacy and Use Policy carefully. By accessing or otherwise using any part of the System, you signify your assent to this Data Privacy and Use Policy. If you do not agree to this Data Privacy and Use Policy, you are not permitted to access or otherwise use the website, mobile application, or any other part of the System.
Two types of data are collected: (a) personal data, such as names, company names, postal addresses, e-mail addresses, telephone numbers, occupation, dates of birth, age, gender, financial information, credit card information, player’s club information, product and/or service preferences, photographs, and comments that can be used to uniquely identify or contact a single person (“Personal Data”); and (b) non-personal aggregate or traffic data, such as your IP address, which web pages or portions of the System you are visiting, the order in which the areas are visited, unique device identifier, time zone, which hyperlinks or functions are being “clicked”, how many users are visiting or accessing the System, dates of room reservations, number of adults and children occupying a reserved room, domain server, location-based or real-time geographic location information, type of computer or device, and type of web browser (“Traffic Data” and together with Personal Data, the “Collected Data”).
Collection and Usage
Personal Data is gathered when users provide or authorize Personal Data to or through the System, for example, when registering with the System, requesting reservations, participating in an online survey, inputting content into the System, verifying user credentials, purchasing products or services, allowing access to social media networks, or utilizing any other Eastside Cannery product or service through the System. Personal Data is also gathered about others when users share content with family, friends, or other contacts, without limitation, the name, email address, phone number, and mailing address.
Traffic Data is tracked and gathered when you and other users visit or access the System. While gathering Traffic Data may not collect Personal Data, it may provide information on the geographical location from which users access the System. Traffic Data generally does not identify individual users. Instead, the Traffic Data identifies System users as a whole, including demographic information, preferences in content and advertising, quality of service, and web and application traffic patterns.
Eastside Cannery may, in Eastside Cannery’s sole and absolute discretion, release and disclose the Collected Data to affiliated or contracted persons, associations, or other entities of whatsoever nature, including, without limitation, strategic alliances and advertising affiliated persons and/or entities (the “Related Parties”) or to any law enforcement agency, court, or other governmental authority to: (a) fulfill a user’s lawful request; (b) conform to the edicts of the law or comply with legal process; (c) protect and defend Eastside Cannery’s rights and property; or (d) to protect the personal safety of Eastside Cannery’s users, Eastside Cannery’s employees, or the public. Where appropriate, in Eastside Cannery’s sole and absolute discretion, Eastside Cannery may provide notice to you.
For instance, Eastside Cannery may use your Personal Data to: (1) send you information about Eastside Cannery and its products, updates, services, important notices, special offers, and/or upcoming events; (2) send you information about the Related Party’s products and services; (3) conduct surveys about your opinion of Eastside Cannery, its staff, performance, products and services or the System; (4) verify your qualifications for certain promotions, special offers, products and services; (5) bill you for any products and services purchased through the System via a credit card, electronic, or other payment; and (6) customize, improve, and/or tailor your experience on the System by displaying content that Eastside Cannery thinks you might be interested in according to your preferences.
Eastside Cannery may, in Eastside Cannery’s sole and absolute discretion, release and disclose the Collected Data to any persons, associations, or other entities of whatsoever nature not affiliated with Eastside Cannery (the “Non-Affiliates”) for the purpose of facilitating your instructions, requests, reservations and/or registrations for products or services provided by Eastside Cannery or the Non-Affiliates (including, without limitation, customer support, information technology support, credit card or other electronic payment processing and personal profile services) when the transfer of such Collected Data is necessary to provide you with such products or services. By instructing, requesting, reserving and/or registering for such products or services from Eastside Cannery or the Non-Affiliates on or through the System, you consent to the release of your Collected Data to the Non-Affiliates. Eastside Cannery shall use reasonable efforts to provide the Non-Affiliates access only to the Personal Data necessary to assist in responding to your instructions, requests, reservations and/or registrations for such products or services and cause such Non-Affiliates to use your Personal Data for these limited purposes.
In the event that Eastside Cannery sells, buys, merges, or otherwise reorganizes all or a controlling part of Eastside Cannery’s assets and/or equity (or intends or is considering its options to do so), your Collected Data may be disclosed, released, transferred, sold or otherwise conveyed to prospective or actual buyers, sellers or persons and/or entities related to such actions by Eastside Cannery. You consent to any and all such conveyances of the Collected Data.
Please note that chat rooms, forums, message boards, links to third party websites or mobile applications (including social media websites and mobile applications), and/or news groups may be available through the System. While Eastside Cannery will only use and disclose the Collected Data as set forth herein, any information disclosed in these areas is or may be deemed public information and you must exercise caution and discretion when deciding to disclose personal and non-personal information.
Please keep in mind that if you directly disclose Personal Data or personally sensitive data through your home page, linked sites, or other public forums, this information may be collected and used by others. Eastside Cannery encourages all users to review the privacy statements of websites and/or mobile applications you choose to link to from the System so that you understand how those third parties collect, use and share information about you and/or your electronic devices. Eastside Cannery is not responsible for the data collection, data usage, privacy statements or content on other websites or other solutions.
You consent to any and all such conveyances of the Collected Data regardless of your location and your consent includes any and all such conveyances outside of your location, including, without limitation, in the United States and in other countries and territories.
In the event that Eastside Cannery wishes to transfer or release your Personal Data to a third person in a manner not set forth in this Data Privacy and Use Policy, Eastside Cannery shall inform you prior to such transfer or release and provide you with the ability to opt out of such transfer or release of Personal Data.
Cookies and Related Files
The System may place small files, called ‘cookies’ onto your computer or electronic device, as well as related files, such as web beacons, pixel tags, or other means. Cookies are data files that websites or other portions of a system may write onto computer or other electronic device for record keeping purposes when you visit them. The cookie file then identifies you as a unique user. As a convenience feature, cookies simplify the process of recording personal information, so that, for example, users do not have to enter names, addresses or passwords repetitively. Cookies also allow users or Eastside Cannery to customize some System features.
You can program your browser not to accept cookies, but if you do, you may be unable to access some parts of the System, and the System will not be able to customize features according to certain preferences.
While on the System, you may receive cookies from third party advertisers or promotional entities. These cookies are outside the control of Eastside Cannery, are not subject to the Data Privacy and Use Policy, and Eastside Cannery is not responsible for such third party cookies.
Measures to Safeguard Children
Eastside Cannery encourages parents and guardians to spend time with their children online and to be fully familiar with the websites and other software visited by their children. At various places on the System, Eastside Cannery may ask users whether they are 21 years of age or older or of proper legal age. Eastside Cannery relies on users to be truthful in responding to these questions. Eastside Cannery does not knowingly collect or maintain personal information from children under 13 years of age. If Eastside Cannery learns that personal information of a child under 13 years of age has been collected, Eastside Cannery will take steps to delete the information as soon as possible. If you are under 21 years of age or the proper legal age, you are not allowed to use or access the System at any time or in any manner and any such use is unauthorized.
Except where required in accordance with law, law enforcement agency, court, or other governmental authority, Eastside Cannery does not intentionally solicit Personal Data from individuals under 21 years of age. A parent or guardian whose child provided Personal Data to Eastside Cannery without the parent’s or guardian’s consent should immediately notify Eastside Cannery of such disclosure in writing to the contact provided below. Eastside Cannery, upon receipt of such written notice, shall take reasonable measures to remove such disclosed information from Eastside Cannery’s database and/or notify the appropriate authority.
Eastside Cannery has implemented security measures to help protect the Personal Data. For example: (a) Eastside Cannery stores Personal Data on servers that are in one or more physical locations that are monitored and accessible by a limited authorized set of individuals and (b) certain Collected Data is obtained through a web form and transmitted using secure socket layer (SSL) or other secure technology as may be determined by Eastside Cannery from time to time. Although Eastside Cannery has implemented such security measures to help protect the Personal Data, the Personal Data may still be accessed, altered, disclosed and/or otherwise used in an unauthorized manner and as such, Eastside Cannery is not responsible if such unauthorized access, alteration, disclosure and/or other uses occur.
Changes to this Data Privacy and Use Policy
Eastside Cannery will occasionally update this Data Privacy and Use Policy to reflect company and user feedback, or changes in applicable law. You are encouraged to periodically review this Data Privacy and Use Policy to be informed of how Eastside Cannery utilizes or discloses user information. Your continued use of the System constitutes your consent to any and all such changes.
This Data Privacy and Use Policy, the System, and any claim associated with, related to, or arising from the Data Privacy and Use Policy and/or System are governed by the law of the State of Nevada within the United States. Any claim associated with, relating to or arising from this Data Privacy and Use Policy or the System shall be brought in a federal or state court in the County of Clark, State of Nevada within one year after the claim arises. You hereby affirm your consent to the sole and exclusive jurisdiction of the courts located in the County of Clark, State of Nevada as the most convenient and appropriate forum for the resolution of disputes concerning this Data Privacy and Use Policy. The System is controlled, operated and administered entirely within the United States. Use of the System from locations outside the United States where these practices are illegal or violate any law is prohibited.
Questions about this Data Privacy and Use Policy should be directed to customerservice@EastsideCanneryResorts.com.
END USER LICENSE AGREEMENT
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS.
THESE TERMS AND CONDITIONS ARE ACCEPTED AND CONSTITUTE A BINDING AGREEMENT UPON LOGGING-IN TO A USER ACCOUNT, CLICKING THE “AGREE” BUTTON OR OTHER COMPARABLE OPTION (“ASSENT”). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS, DO NOT PROVIDE YOUR ASSENT AND YOU ARE NOT GRANTED A LICENSE IN ACCORDANCE WITH THIS AGREEMENT, AND ANY ACCESS, COPYING, OR OTHER USE IS UNAUTHORIZED AND PROHIBITED.
This End User License Agreement (this “Agreement”) is made and entered into on the date the Assent was made (“Effective Date”) by and between Nevada Palace, LLC, a Nevada limited liability company d/b/a Eastside Cannery Casino & Hotel (“Eastside Cannery”) and you as the natural person that indicates the Assent (“User”) and you represent and warrant that you are at least eighteen (18) years old or older to be the appropriate legal age to form a binding agreement with Eastside Cannery.
In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Eastside Cannery and User (each a “Party” and together the “Parties”) hereby agree as follows:
1. Definitions and Interpretations
1.1. Certain terms used herein shall have the following meanings:
1.1.1. “Claim” shall mean any demand, complaint, request for redress, assertion of a cause of action or other claim whatsoever.
1.1.2. “Content” shall mean all material, information, documents, matter, text, Software, data, graphics, drawings, blue-prints, schematics, sketches, computer-generated displays and interfaces, images, photographs and works of whatsoever nature, including, without limitation, all compilations of the foregoing and all results and/or derivations of the expression of the foregoing (all of the foregoing whether in a format now known or hereinafter Developed).
1.1.3. “Develop” shall mean develop, conceive, discover, reduce to practice, create, or otherwise arise out of a Person’s efforts in any manner whatsoever and through any means whether now known or hereafter devised.
1.1.4. “Disclose” shall mean disseminate, transmit, publish, post, upload, initiate, distribute, transfer, make available or otherwise convey.
1.1.5. “Documentation” shall mean the operating, training, support and reference manuals and other Content associated with the Licensed Software and made available to the User by Eastside Cannery.
1.1.6. “Eastside Cannery Property” shall mean all physical and intangible property owned, held, licensed, leased, possessed or used by Eastside Cannery, including, without limitation, Licensed Property, devices, keys, access cards, credit cards, identification cards, computers, fax machines and/or other property.
1.1.7. “Enabled Content” shall mean data, information, text, reports and other Content resulting from and enabled by the execution of the Licensed Software and accessible by User.
1.1.8. “Governmental Authority” shall mean any federal, state, county, judicial, arbitral, municipal or other governmental or sovereign entity, as well as all subdivisions, agencies and authorities therein.
1.1.9. “Law” shall mean any constitution, statute, code, rule, or regulation of any federal, state, county, municipal or other sovereign entity, as promulgated and amended from time to time.
1.1.10. “Licensed Property” shall mean the Licensed Software, the Enabled Content and the Documentation.
1.1.11. “Licensed Software” shall mean the software made generally and commercially available by Eastside Cannery through a domain name or mobile devices designated by Eastside Cannery and licensed pursuant to this Agreement enabling certain functions for access certain hotel, restaurant, shows, casino, players club and other related Content, including, without limitation, reservations, account information, promotional events, and games.
1.1.12. “Losses” shall mean any and all damages, liabilities, costs, charges, expenses, expenditures, fees (including, without limitation, attorneys’, accountants’, experts’, investigators’, witnesses’ and professionals’ fees) and other losses of whatsoever nature.
1.1.13. “Person” shall mean any natural person, corporation, general partnership, limited partnership, limited liability partnership, limited liability company, trust, association, organization or other entity of whatsoever nature or character.
1.1.14. “Representatives” shall mean all shareholders, directors, officers, strategic advisors, employees, agents, representatives, attorneys, and accountants whether holding equity in, retained by, employed by, commissioned by or otherwise controlled by a subject Person.
1.1.15. “User Content” shall mean any Content Disclosed by User, including, without limitation, all Content input by User using the Licensed Software for inclusion in the Enabled Content.
1.1.16. “Termination Event” shall mean any and all events that trigger the last day this Agreement is in effect, either by way of termination or expiration, including, without limitation, pursuant to Section 12.
1.2. Terms defined in the singular or present tense, shall also retain such general meaning if used in the plural or past tense, and if used in the plural or past tense, shall retain the general meaning if used in the singular or present tense.
1.3. Section headings are used for convenience only and shall have no interpretive effect or impact whatsoever.
The term of this Agreement shall commence on the Effective Date and shall remain in effect until the occurrence of a Termination Event (the “Term”).
3. Grant of Limited License
3.1. Subject to the terms and conditions of this Agreement, Eastside Cannery hereby grants to User a personal, limited, revocable, non-exclusive, non-transferable, non-assignable license to: (a) execute the executable code of the Licensed Software utilizing the User’s account; provided, however, that access to and execution of the executable code of the Licensed Software may, in Eastside Cannery’s sole and absolute discretion, be denied at: (i) certain times reasonably designated by Eastside Cannery for updates, back-ups and/or maintenance and/or (ii) other times unexpected and/or outside the reasonable control of Eastside Cannery including, without limitation, network outages, technical errors, to comply with applicable Law, and third Person acts or omissions that prohibit, hinder or otherwise preclude access to and execution of the Licensed Software and (b) view, download, and print the Enabled Content only for User’s professional use and only in accordance with all Laws, ethical rules, codes of conduct and other practices applicable to User and User’s profession; provided, however, that nothing in this Agreement shall grant a license to Disclose such Enabled Content to any third Person unless required by Law. This foregoing limited license applies to any future versions, revisions, improvements, developments, updates and upgrades to the Licensed Software that Eastside Cannery may make generally and commercially available to the User, unless such versions, revisions, improvements, developments, updates and/or upgrades are accompanied by separate terms.
3.2. User grants Eastside Cannery a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable, assignable license to use, modify, translate, reformat, create derivative works from, store, distribute and display any User Content, including, without limitation, in and through the Licensed Software.
4.1. User shall pay Eastside Cannery up front the amounts designated or approved by Eastside Cannery for the license set forth above (“Amounts”) and hereby authorizes Eastside Cannery to charge the Amounts to User’s credit card or electronic payment method approved by Eastside Cannery (in Eastside Cannery’s sole and absolute discretion).
4.2. In addition to any other remedies available in this Agreement or otherwise in Law or in equity: (a) Eastside Cannery may limit or suspend access by the User to all Licensed Software or other Licensed Property in the event User fails to timely pay any Amounts due and (b) User shall pay to Eastside Cannery interest on any late payments in an amount that shall be the lesser of: (i) one percent (1%) per month or (ii) the maximum percentage allowed by Law. Payment when due of the Amounts by User is of the essence of this Agreement.
5. User Covenants/Representations/Warranties
User hereby covenants, represents and warrants as of the Effective Date and throughout the Term and where applicable, after the Term, the following:
5.1. User: (a) has the authority to enter into this Agreement, (b) is voluntarily entering into this Agreement, (c) is at least eighteen (18) years old or older to be the appropriate legal age; and (d) shall comply with the terms and conditions of this Agreement;
5.2. Neither the execution and delivery of this Agreement or any document, agreement or instrument required by this Agreement, nor the consummation of the transactions contemplated herein or therein shall constitute a violation of, or default under, or conflict with, any term or provision of any commitment, indenture, lease or other contract to which User is a party or by which User is bound;
5.3. User shall comply with all applicable Laws, including, without limitation, privacy, defamation, and security Laws;
5.5. User is the natural person associated with the User account and shall: (a) be responsible for all use of the User’s account, including, without limitation, all use of the User account log-in information; (b) maintain the confidentiality of User’s account name and password; (c) take reasonable steps to prevent unauthorized use of the User’s account and the Licensed Property; and (d) immediately notify Eastside Cannery in writing of any disclosure and/or unauthorized use of such account name and password;
5.6. User owns or has the right to Disclose all the User Content and the User Content has not, nor shall not, infringe or misappropriate any third Person’s intellectual property rights or otherwise violate any Laws;
5.7. User shall not Disclose any Content that User does not have a right to Disclose under any Law or under any contractual or fiduciary relationships or any Content that infringes the proprietary rights of any Person;
5.8. User shall be solely responsible for all User Content and Eastside Cannery is not responsible to User or any third party for any User Content;
5.9. As between the Parties, Eastside Cannery owns all right, title and interest in and to the Licensed Property (including, without limitation, all copyrights) and to the extent User is deemed an owner of any right, title, or interest in and to the Licensed Property or otherwise has a bona fide claim of ownership (whether arising from this Agreement or otherwise), User hereby assigns any such right, title or interest to Eastside Cannery and shall execute all documents and undertake all actions necessary to effect the clarification of ownership of all such right, title or interest in and to Eastside Cannery;
5.10. User shall in no way represent that User has any right, title or interest in or to the Licensed Property;
5.11. User shall not view, download, or print the Enabled Content for any purpose outside the limited scope set forth in Section 3.1 without the express written consent of Eastside Cannery, such consent granted or denied in Eastside Cannery’s sole and absolute discretion;
5.12. User shall not charge a fee, or offer for free, to any Person to: (a) execute the Licensed Software or (b) view, print or otherwise use the Enabled Content;
5.13. User shall not impose a security interest, pledge, hypothecation, lien, mortgage, or any other encumbrance of whatsoever nature, nor enable any Person to do so, on the Licensed Property or any portion thereof;
5.14. User shall not Disclose any Content containing a virus, bug, Trojan horse, worm, time bomb, cancelbot, corrupted Content, security breach, any intrusion from internal or external sources, or other similar Content that may damage the operation of the Licensed Property or any Person’s computer or property;
5.15. User shall not interfere with or disrupt or attempt to interfere with or disrupt the provision of the Licensed Property to User or any third Person;
5.16. User shall not copy, make derivative works, modify, disassemble, decompile, or reverse engineer the Licensed Property, including, without limitation: (a) modify or caused to be modified any files that are part of the Licensed Software; or (b) facilitate, create or maintain any unauthorized connection to the Licensed Software;
5.17. User shall not impersonate any Person or falsely state or otherwise misrepresent User’s identity or affiliation with any Person or to disguise or otherwise misrepresent the origin of any User Content;
5.18. User shall not Disclose any Content that is unlawful, harmful, threatening, harassing, defamatory, vulgar, invasive of another’s privacy, hateful or otherwise objectionable; and
5.19. User shall not collect or store personal data about other users.
6. Retained Rights
6.1. Eastside Cannery may, in Eastside Cannery’s sole and absolute discretion, modify any and all of the Licensed Property without notice at any time.
6.2. All licenses not expressly granted to User pursuant to this Agreement are reserved by Eastside Cannery, including, without limitation, that Eastside Cannery does not grant any license and User shall not use any trademark or any other intellectual property of Eastside Cannery.
6.3. Eastside Cannery retains the right to restrict User’s use of any portion of the Licensed Property, including without limitation, the Licensed Software or Enabled Content, that is the subject of a prohibition of use by any Law, or that is determined to infringe a third Person’s intellectual property.
7.1. User hereby covenants, represents and warrants that User shall not Disclose any Confidential Information to, and shall take reasonable efforts to keep such Confidential Information reasonably inaccessible from, any Person who is not authorized to view the Confidential Information. Without limiting the foregoing, User shall not Disclose or use any of Eastside Cannery’s trade secrets in perpetuity. All provisions protecting Confidential Information in this Agreement shall be deemed to also protect Eastside Cannery’s trade secrets, but references to Eastside Cannery’s trade secrets shall not be deemed to automatically refer to Confidential Information.
7.2. If User is requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to Disclose any of the Confidential Information, User shall provide Eastside Cannery with prompt written notice of such request or requirement so that Eastside Cannery may seek protective orders or other appropriate remedies and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by Eastside Cannery, User nonetheless is legally compelled to Disclose Confidential Information to any court or tribunal or else would stand liable for contempt or suffer other censure or penalty, User may, without liability herein, Disclose to such court or tribunal only that portion of the Confidential Information which the court requires User to Disclose, provided that User exercise best efforts to preserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with Eastside Cannery to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such court or tribunal.
8. Equitable Relief
Notwithstanding Section 9, User covenants, represents and warrants that any violation of Sections 3or 55 by User shall cause irreparable injury to Eastside Cannery and shall entitle Eastside Cannery to extraordinary and equitable relief by a court, including, but not limited to, temporary restraining orders and preliminary and permanent injunctions, without the necessity of posting bond or security. The opinions, findings, determinations and orders of any court with respect to permanent equitable relief granted consistent with this Section 8 shall have binding effect upon any arbitration and shall otherwise have res judicata and collateral estoppel effect upon any arbitration; provided, however, that the arbitrator shall give any court opinion, finding, determination or order granting temporary or preliminary equitable relief persuasive juridical authority.
9. Dispute Resolution
SUBJECT TO SECTION 8, THE PARTIES SHALL ENDEAVOR TO FIRST SETTLE ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY BREACH OF THIS AGREEMENT) CLAIM BY MEDIATION CONDUCTED IN CLARK COUNTY, NEVADA. IF ANY CLAIM IS NOT OTHERWISE RESOLVED THROUGH DIRECT DISCUSSIONS OR MEDIATION, SUCH CLAIM(S) SHALL BE RESOLVED BY ARBITRATION CONDUCTED IN CLARK COUNTY, NEVADA IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF NEVADA REVISED STATUTES, EXCEPT THAT THE ARBITRATOR SHALL BE AN EXPERIENCED ARBITRATOR LICENSED TO PRACTICE LAW IN NEVADA. EACH PARTY COVENANTS, REPRESENTS AND WARRANTS THAT SUCH PARTY HEREBY WAIVES SIGNIFICANT RIGHTS ALLOWED PURSUANT TO NEVADA LAW BY AGREEING TO SUCH ARBITRATION PROVISIONS.
10. Disclaimer of All Warranties and Representations
THE LICENSED PROPERTY IS PROVIDED “AS IS.” EASTSIDE CANNERY MAKES NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED AND DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO LICENSED PROPERTY OR ANY OF THE TRANSACTIONS REASONABLY CONTEMPLATED BY THE PARTIES PURSUANT TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES (some jurisdictions do not allow the exclusion of implied warranties, so the exclusion of implied warranties may not apply to the User) OR CONDITIONS OF TITLE, NON INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT EASTSIDE CANNERY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
11. Limitations on Liability
EASTSIDE CANNERY’S (AND ITS REPRESENTATIVES’, AFFILIATES’ AND LICENSORS’) SHALL NOT BE LIABLE TO USER (OR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS SUCCESSOR TO USER’S RIGHT, TITLE AND INTEREST), WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR ANY OTHER THEORY OF LAW OR EQUITY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF BUSINESS, LOSS OR CORRUPTION OF CONTENT, INTERRUPTION OR COMPUTER FAILURE ARISING OUT OF THIS AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTIES HAVE ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND IN NO EVENT SHALL EASTSIDE CANNERY OR EASTSIDE CANNERY’S REPRESENTATIVES’, AFFILIATES AND LICENSORS’ BE LIABLE TO USER (OR TO ANY PERSON CLAIMING ANY RIGHT, TITLE OR INTEREST DERIVED FROM OR AS A SUCCESSOR TO USER’S RIGHT, TITLE AND INTEREST) IN AND FOR AN AMOUNT THAT EXCEEDS THE FEES, IF ANY, RECEIVED BY EASTSIDE CANNERY FROM USER WITHIN THE THREE (3) MONTHS PRIOR TO TERMINATION OF THIS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY REPRESENTS THE ALLOCATION OF RISK OF FAILURE BETWEEN THE PARTIES AS REFLECTED IN THE PRICING HEREUNDER AND IS AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES.
12.1. User may terminate this Agreement at any time by notifying Eastside Cannery of such termination in writing.
12.2. In addition to any and all other remedies available to Eastside Cannery at law or equity, Eastside Cannery shall have the right to immediately terminate this Agreement, with or without notice, upon the occurrence of any of the following events:
12.2.1. On the date identified in a five (5) day prior notice sent by Eastside Cannery to User terminating the Agreement and/or the grant of license to User;
12.2.2. User commits an act of fraud against Eastside Cannery, regardless of whether such act of fraud is a material breach;
12.2.3. User Discloses Confidential Information to an unauthorized Person, regardless of whether such Disclosure is a material breach;
12.2.4. User breaches any provision relating to, associated with, or arising from User’s covenants, representations and warranties or User engages in any of the prohibited uses identified in this Agreement;
12.2.5. User fails to timely pay all amounts to Eastside Cannery when due; or
12.2.6. User otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days of such breach.
12.3. Upon termination, all licenses granted to User shall immediately terminate and User shall immediately cease all use of the Licensed Property and return all Eastside Cannery Property.
12.4. Eastside Cannery reserves the right to cancel user accounts that have been inactive for more than three (3) months without any obligation to refund any amount for such canceled user account.
Notwithstanding any other provision of this Agreement, User shall indemnify and hold Eastside Cannery and Eastside Cannery’s Representatives (the “Eastside Cannery Indemnified Parties”) harmless from and against any Losses incurred by any of the Eastside Cannery Indemnified Parties with respect to, arising from or out of any Claim that relates to or arises out of any act or omission of User (except an act or omission that emanates from an infringement by Eastside Cannery of a third Person’s intellectual property), including, without limitation, the misuse of the Licensed Property, alleged breach, or investigation relating to a possible breach, of any legal requirement or of any covenant, representation, warranty or other obligation of User contained in or arising out of this Agreement.
14. Limitations on Assignment
This Agreement, including, without limitation, the license granted pursuant to Section 3.1, is personal to User, and User shall not assign or transfer any of User’s rights or have assumed any of User’s obligations pursuant to this Agreement to and by, respectively, third Persons without the prior written consent of Eastside Cannery, such consent granted or denied in the sole and absolute discretion of Eastside Cannery.
Waiver by Eastside Cannery of performance of any provision of this Agreement shall not be a waiver of, nor prejudice to, Eastside Cannery’s right to require, strict performance of the same or any other provision in the future.
16. Force Majeure
Eastside Cannery shall not be liable for, or be in breach of this Agreement associated with, relating to, resulting from, or arising from any cause beyond Eastside Cannery's control, including, without limitation, war, insurrection, public enemy, acts of God, terrorist acts, changes in Laws, acts or omissions of Governmental Authorities, labor disputes, strikes, and/or power failures, or any unavailability, delay, or malfunction of any Licensed Property related to the Internet or events or activities of third Persons outside of Eastside Cannery’s control.
Eastside Cannery may provide any notice by posting to Eastside Cannery’s website or by sending electronic mail to the email address User provided, in Eastside Cannery’s sole and absolute discretion, and such notice shall satisfy any legal requirement that communications be in writing.
18. General Provisions
18.1. Unless otherwise specified, all terms and provisions shall be applicable throughout the Term.
18.2. If any provision of this Agreement should be held to be void or unenforceable, in whole or in part, by a court of competent jurisdiction, then such court shall correct the defect in a narrowly tailored manner to approximate the manifest intent of the Parties.
18.3. This Agreement shall not be amended or modified except by: (a) Eastside Cannery providing notice of such amendment or modification and such amendment or modification are accepted and incorporated herein by this reference upon Assent or (b) written document signed by both Parties.
18.4. Sections 1 and 4 through 18, inclusive, shall survive any termination of this Agreement.
18.5. Subject to Section 14, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
18.6. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to conflicts of law principles. User consents to personal jurisdiction, as well as exclusive venue for any Claim regarding or arising out of this Agreement in the appropriate state or federal court located in Clark County, Nevada.
18.7. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between the Parties with respect to the subject matter of this Agreement shall be of any force or effect.