Last update posted: Jun 21, 2024
Effective Date:
THIS AGREEMENT INCLUDES MANDATORY ARBITRATION, CLASS ACTION WAIVER, AND JURY WAIVER PROVISIONS. BY USING OUR SERVICES OR ACCEPTING THESE TERMS IN ANY OTHER WAY, YOU AGREE TO THESE PROVISIONS, WHICH APPEAR IN SECTIONS 11 AND 12 OF THESE TERMS.
This is a legally binding agreement between Four Elephants Media, Inc. (“Four Elephants,” “Company,” “we,” or “us”) and you. These terms of service (these “Terms”), effective as set forth below, will govern your access and use of our owned and operated website, currently available at samharris.org (the “Site”), the Making Sense podcast (the “Podcast”), any other products, services, or events provided by Company, and all associated Company features, applications, widgets, and their respective contents branded as Company, or offered through the Site, including without limitation, any new features and applications (collectively, the “Services” or “Company Services”). The Company Services do not include the Waking Up app, website and related offerings, or anything else governed by the Waking Up Terms of Service.
Company reserves the right to assign, delegate, or transfer these Terms and the rights, licenses and obligations they contain to another entity. This may be another entity within our corporate family or an unrelated third party.
By using the Company Services in any manner, (i) you agree to these Terms, and (ii) you authorize the collection, use, disclosure and other handling of information as set forth in our privacy policy, which is currently located at https://www.samharris.org/privacy-policy. You must comply with these Terms and any other policies, rules and guidelines that Company provides in the Company Services. If you do not agree, you may not use the Company Services.
However, if you were a user of any Company Services prior to the date we posted this version of the Terms, the prior version of these Terms will continue to apply until the earlier of: (a) 11:00 a.m. Eastern time on the 30th day after Company posted this version, or (b) your taking some other action to specifically accept the updated Terms, such as clicking to accept them when opening a new account.
From time to time, we may, in our sole discretion, update these Terms by posting the updated version and updating the “Last Update Posted” date at the top of the page. Unless you first reject the updated Terms by discontinuing all use of the Company Services and sending a notice of termination to termination@samharris.org, you will be deemed to accept the changes and they will take effect at the “Update Effective Time”, which is the earlier of: (a) 11:00 a.m. Eastern time on the 30th day after Company posts them (or a later date that we specify in the update, if any); (b) your first ever use of a new or changed feature of the Company Services that is subject to the updated Terms, or (c) your taking some other action to specifically accept the updated Terms, such as clicking to accept them. (Provisions (a) and (b) of the preceding sentence do not apply to updates to Section 11 below.) You must send the termination notice from the email address associated with your account, or if this is not possible, you must promptly cooperate with us to identify your account. Regardless of the email address you use, you must promptly cooperate with any request from us to authenticate that you are the account holder and that you are the actual sender of the termination notice. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. At your request, following your termination, we will issue you a pro-rated refund for any remaining unused portion of subscription fees you have paid. You are prohibited from using the Company Services after sending a notice of termination, except as may be necessary to follow any instructions we may provide via email for authentication of your identity and request. If you violate this requirement and do use the Company Services after sending a notice of termination (and before we block your access), your termination notice will be void as if it had never taken effect, and the updated Terms will take effect (or will have taken effect) at the Update Effective Time.
NOTHING IN THE COMPANY SERVICES IS A SUBSTITUTE FOR PROFESSIONAL MENTAL HEALTH OR MEDICAL TREATMENT. YOU SHOULD ALWAYS SEEK THE ATTENTION OF A LICENSED MEDICAL PROFESSIONAL FOR ANY CONCERNS.
You may not use the Company Services if you are under age 18.
You agree not to use the Company Services if we have prohibited you from using them.
Subscription. Your Company subscription will continue and automatically renew until terminated. To use the Company Services you must have Internet access, a device that can utilize the Company Services and, if applicable, a valid form of payment. Additional technology and resource requirements for subscriptions and certain other Company Services are specified in Section 11. You authorize us to charge any form of payment you provide, in connection with your subscription. You must cancel your subscription before it renews in order to avoid billing of the subscription fees for the next billing cycle. Your billing will include your subscription fees and any applicable taxes and transaction fees.
Free Trial. Your Company Services may start with a free trial period. Any free trial period is at the sole discretion of Company and we may limit eligibility or duration to prevent misuse. We reserve the right to terminate any free trial period at any time. We may charge you a subscription fee upon expiration of your free trial period. To view the subscription price, please access your account information when you login for the Company Services.
Account and Podcast/RSS Feed. To have a subscription, you will need to open a user account. You will be asked to provide us with certain information such as a valid email address or Google account. You are solely responsible for maintaining the confidentiality of your account, your email address and Google account. You may be assigned a one-time PIN code via email for use in each login instance. You must ensure the information you provide to us is true, accurate, current, and complete to the best of your knowledge, and you must update it when it changes. You may not sell, share, or provide access to your account (or Podcast content or RSS feed) to anyone else, including without limitation, charging anyone for access to your account or Podcast content or RSS feed.
Cancellation. You can cancel your Company subscription at any time through the settings in your account. Following a cancellation you request, you will continue to have access to the Company Services through the end of your subscription period. If you are dissatisfied with the Company Services or are experiencing financial hardship, you may also request a refund by emailing us directly at info@samharris.org. If you are issued a refund, you may lose access to the Company Services immediately.
Communication Preferences. You consent to receive communications from us by email or text. We may send you curated content including newsletters, digests or other promotional materials that may be of interest to you. You may stop receiving our promotional emails by (i) clicking the unsubscribe links contained in emails, or (ii) adjusting the “Newsletter Subscription” toggle in your account. You can opt out of any direct promotional communications by emailing your request to opt out, along with the contact information to which your request applies, to info@samharris.org.
You agree that providing you these Terms (including all updates thereto), agreements, notices, disclosures, and other communications electronically (such as by email, through Site, or through the Podcast) will satisfy any legal requirement that such communications be in writing.
All materials on the Company Services, including the designs, graphics, text, sounds, pictures, videos, software and other files and the selection and arrangement thereof (collectively, “Materials”), are the property of Company or its licensors and are protected by intellectual property laws. Subject to your compliance with these Terms, Company grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to use the Company Services solely for your personal, non-commercial use. You will not obtain any ownership interest in the Materials or the Company Services through these Terms or otherwise. The Posting or display of any Materials does not constitute a waiver of any rights in such Materials. All rights to Materials are reserved to their respective copyright owners. Except as expressly authorized by these Terms, you may not copy, reproduce, distribute, republish, download, perform, display, Post, transmit, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of Company or the respective copyright owner. Company authorizes you to use only the Materials that we intentionally make available to you, and you may use them only for your own personal, non-commercial use. You must keep intact all copyright and other proprietary notices contained in the Materials. You may not modify or adapt the Materials in any way or otherwise use them (such as for any public or commercial purposes). The trademarks, service marks, trade names, trade dress and logos (collectively, "Marks”) contained or described on the Company Services (including, without limitation, any marks associated with any products available on the Company Services) are the sole and exclusive property of Company and/or its licensors and may not be copied, imitated, or otherwise used, in whole or in part, without the prior written authorization of Company and/or its licensors. In addition, all page headers, custom graphics, button icons and scripts are Marks of Company and may not be copied, imitated or used in whole or in part, without our prior written authorization.
None of the Materials or Company Services may be reverse-engineered, disassembled, decompiled, transcribed, stored in a retrieval system, translated into any language or computer language, re-transmitted in any form or by any means (electronic, mechanical, photocopying, recordation, photo-reproduced, or otherwise), or reproduced without the express prior written permission of Company or its licensors.
You must not hack the Company Services or perform any other activity that may damage, detrimentally interfere with, intercept or expropriate any system, personal information, or other data. You must not perform any activity to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment. You may not use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm, or methodology or any similar or equivalent manual process to access, acquire, copy, or monitor any portion of the Company Services, or in any way reproduce or circumvent any aspect of the Company Services (such as the navigational structure or presentation of any of the Company Services), or to obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Company Services. We may use technical means to detect and block any such activity, but our failure to do so is not a waiver of this prohibition. These Terms do not prohibit the normal use of personal accessibility technology (such as a screen reader for individuals with visual impairment) to access Company Services.
You may link to any of our Company Services from your website, blog, application, platform, or services, provided that (a) the link redirects the user to the respective Company Services when the user clicks on the link; (b) you do not insert any intermediate page, splash page, or other content between the link and the Company Services; (c) you do not use the content in a manner that suggests Company, the Company Services, or individuals featured in the Company Services, promote or endorse your or any third party’s cause, idea(s), product(s), site(s), application(s), platform(s), or service(s); (d) you do not use the Company Services or any portion thereof for commercial purposes; and (e) you do not use the Company Services in any way that is unlawful or harmful to any individual or entity.
From time to time, you may provide us with comments, suggestions, or ideas for enhancements, improvements, changes, or additions to the Company Services or our business in general, including ideas for new features, materials, and other content (“Feedback”). By providing us Feedback, you grant to us exclusive ownership of the Feedback and of all intellectual property rights and other rights in it, and you will provide us with reasonable cooperation in documenting this grant. Company has no obligation to do anything with Feedback, but we will have the full, worldwide, unencumbered right to use, incorporate, and otherwise fully exercise and exploit any such Feedback via all forms of media, distribution methods, and technology now known or later developed, for any purposes, commercial or otherwise, and to transfer or license our rights in the Feedback, without notice, acknowledgement or compensation to you.
Certain Company Services may enable you or other users to create, modify, submit, or add (collectively, “Post”) text, images, videos, links, votes, likes, communications with other users or third parties, and other files and information (“Member Content”). Member Content includes saved and unsaved drafts of any such material. Member Content is part of the “Materials” defined in Section 3 of these Terms.
Some Member Content might initially be accessible only to only certain users (such as content on spaces we designate as “private” boards), but we may later make that Member Content accessible to all users or to the general public. For this reason, please assume that all your Member Content may become public, though we have no obligation to make it public.
You, or your licensors, as applicable, retain ownership of any copyright or other intellectual property rights you may have in your Member Content, subject to the non-exclusive license granted below.
By Posting Member Content, you grant Company a perpetual, irrevocable, nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable (through multiple tiers), license to use, copy, reproduce, process, adapt, modify, create derivative works from, publish, transmit, store, display and distribute, translate, communicate, and otherwise use the Member Content in connection with the operation the Company Services or other aspects of our business, including to use the Member Content for Company’s promotional, advertising or marketing purposes, in each case via all forms of media, distribution methods, and technology now known or later developed. For example, we might include content from a Post in an advertisement about the Company Services. This license includes the right for Company to make Member Content available to other companies, organizations, business partners, or individuals (including those who collaborate with Company for communication, distribution, or publication) and to make Member Content publicly available. This license also includes the right for us to allow other users of the Company Services to use Member Content in the manner permitted by the then-current Terms.
Although certain parts of the Company Services may have features to delete or modify certain Member Content as it is visible to you or others, Company has the right to preserve any version of Member Content despite the use of such features. Company may disclose any version of Member Content as described in our Privacy Policy.
Company may remove or refuse to publish any Member Content, in whole or part, at any time in its sole discretion. You grant Company and its authorized agents the permission to view, monitor, edit, delete or otherwise moderate any Member Content, including any unpublished Member Content, at any time, but you agree that Company has no obligation to do any of that. The fact any particular Member Content is accessible does not mean that we agree with it, support it, or believe it to be safe or reliable, or that it complies with our Terms, or that we have even reviewed it: it means only that we have not deleted it. Your use of Member Content and anything related to it (such as participation in events it mentions) is at your own risk.
You may Post Member Content only if: (1) you own the Member Content or you have obtained all necessary licenses and permissions to Post such Member Content and grant us the rights and licenses described in these Terms, and (2) your Posting of Member Content does not violate any third party’s rights or any legal requirement. You agree to pay all royalties, fees, and any other monies owed to any person by reason of any Member Content you Post.
To the extent permitted by applicable law, you agree not to hold Company, its affiliates and subsidiaries (including Making Sense Media, LLC) or the owners, officers, directors, shareholders, agents, employees, consultants, affiliates, or subsidiaries of any of them (collectively Company and its “Affiliated Parties”) responsible or liable for the acts and omissions of users, content providers, and other third parties, including any such acts or omissions that occur at events advertised or organized through — or otherwise mentioned on — the Company Services. Each of the Affiliated Parties will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
To the extent permitted by applicable law, you release and agree to release Company and its Affiliated Parties from all claims, demands, and damages (including both direct and consequential) arising out of or in any way connected with such acts and omissions.
You acknowledge that some events or interactions advertised on, organized through, or otherwise mentioned on the Company Services may carry inherent dangers, such as the risk of illness, bodily injury, disability, or death. By participating in any of these events or interactions, you assume these risks.
It is our policy to terminate the subscriptions and accounts of repeat infringers in appropriate circumstances. If you believe your intellectual property is being infringed by the Company Services, please submit a complaint and request for takedown of specific material to dmca@samharris.org. Be sure to provide us with the following information:
Although dmca@samharris.org is the best way to submit your complaint for the fastest response, our Copyright Agent also may be reached as follows:
The Copyright Compliance Department, Corey Field Law Group, P.C.
c/o Four Elephants Media, Inc.
16633 Ventura Blvd, Suite 815
Encino, CA 91436
Telephone: 818-479-7450
Email: dmca@samharris.org
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
The Company Services may contain links to third-party websites. If you use these links, you will leave the Company Services and your dealings will solely be with the third-party websites. You agree that Company is not responsible or liable for any content, goods or services provided on or through these outside websites. You use these links at your own risk and liability. We have no responsibility for the content, legality or accuracy of any third-party information, products or services.
YOUR USE OF THE COMPANY SERVICES IS AT YOUR SOLE RISK. THE COMPANY SERVICES ALONG WITH CONTENT AND MATERIALS AND THE OPPORTUNITY TO CONNECT WITH OTHERS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FOUR ELEPHANTS AND ITS AFFILIATED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, AND IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
FOUR ELEPHANTS MAKES NO WARRANTIES WITH RESPECT TO, AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR: (i) MEMBER CONTENT; (ii) ANY THIRD PARTY, OR THIRD-PARTY WEBSITE, THIRD-PARTY PRODUCT, OR THIRD-PARTY SERVICE ACCESSIBLE OR MADE AVAILABLE TO YOU THROUGH THE COMPANY SERVICES; (iii) THE QUALITY OR CONDUCT OF ANY USER OR OTHER THIRD PARTY YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE COMPANY SERVICES, INCLUDING ANY ACTIVITIES, EVENTS, ENGAGEMENT OR INTERACTIONS WITH OTHERS THAT MAY BE FACILITATED THROUGH USE OF THE COMPANY SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF MEMBER CONTENT. FURTHER, FOUR ELEPHANTS AND ITS AFFILIATED PARTIES MAKE NO WARRANTY THAT THE COMPANY SERVICES (INCLUDING ANY INFORMATION OR OTHER MATERIAL YOU OBTAIN THROUGH THE COMPANY SERVICES) WILL (I) MEET YOUR REQUIREMENTS, (II) BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) BE ACCURATE OR RELIABLE, (IV) BE OF SUFFICIENT QUALITY, AND (V) BE CORRECTED OF ANY ERRORS. YOU USE MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE COMPANY SERVICES AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, YOUR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FOUR ELEPHANTS AND ITS AFFILIATED PARTIES ON OR THROUGH THE COMPANY SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL FOUR ELEPHANTS OR ITS AFFILIATED PARTIES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER. THE COMPANY SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING THE FOREGOING, THE SOLE AND AGGREGATE MAXIMUM LIABILITY OF FOUR ELEPHANTS AND ITS AFFILIATED PARTIES FOR ANY REASON AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR COMPANY SERVICES IN THE TWELVE MONTHS PRIOR TO THE ACTION GIVING RISE TO THE CLAIM, PROVIDED THAT IF A PROVISION IN THE TERMS ENTITLES YOU TO A REFUND, NOTHING IN THESE TERMS SHALL BE CONSTRUED TO VOID YOUR ENTITLEMENT TO THE FULL AMOUNT OF THAT REFUND. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IF YOU HAVE NOT PAID FOUR ELEPHANTS ANYTHING FOR COMPANY SERVICES DURING THAT TWELVE-MONTH PERIOD, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO STOP USING THE COMPANY SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE EXCLUSIONS APPLY, AND LIABILITY IS LIMITED, ONLY TO THE EXTENT PERMITTED BY LAW.
You agree to use the Company Services only for lawful purposes. You will not share your login credentials or access to the Company Services with anybody. You are solely responsible for your use of the Company Services and for all actions that take place using your login credentials, account, or access to the Company Services.
You may not access the Company Services from any territory where it is illegal to do so. If you reside outside the United States and use the Company Services, you do so on your own initiative and are responsible for compliance with your local laws.
These Terms may be terminated by Company at any time. You also agree that Company may terminate or suspend your access to the Company Services, without notice, for any or no reason in its sole discretion. We may do so, for example, for any conduct that Company, in its sole discretion, believes violates any applicable law, violates Company Terms (such as violations of posted policies), or is otherwise harmful to the interests of another user or Company and its Affiliated Parties. You may terminate these Terms at any time by sending a notice of termination to termination@samharris.org and cooperating with us to identify your account and confirm your request, provided that you first discontinue any further use of the Company Services and destroy any downloaded materials and copies of them. You must send the termination notice from the email address associated with your account, or if this is not possible, you must promptly cooperate with us to identify your account. Regardless of the email address you use, you must promptly cooperate with any request from us to authenticate that you are the accountholder and that you are the actual sender of the termination notice. You are prohibited from using the Company Services after sending a notice of termination, except as may be necessary to follow any instructions we may provide via email for authentication of your identity and request. If you violate this requirement and do use the Company Services after sending a notice of termination (and before we block your access), your termination notice will be void as if it had never taken effect.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Company Services (or any part thereof), with or without notice. Except as otherwise expressly stated in these Terms, you agree that Company and its Affiliated Parties shall not be liable to you or to any third party for any modification, suspension, or discontinuation of the Company Services.
You agree to indemnify, defend and hold harmless Company and its Affiliated Parties against all liability, causes of action, damages and costs, including any reasonable attorneys’ fees, arising from third-party claims relating to (i) your use of the Company Services, (ii) your breach of these Terms, (iii) your infringement or violation of any rights of another, or (iv) termination of your access to the Company Services.
This Section governs the resolution of any disputes between you and Company and, to the extent such disputes implicate or relate in any way to the Podcast, disputes between you and Making Sense Media, LLC. Consequently, for purposes of this Section 11 only, the term “Company” includes both Four Elephants Media, Inc. and Making Sense Media, LLC. These Terms shall be governed by the laws of the United States and the State of California, without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
You and Company agree that any claim, dispute, or controversy (whether in contract, tort, or otherwise) that may arise out of or, relate to, or be connected in any way with the Company Services or these Terms, including but not limited to any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment, non-payment, or the timing of any administrative or arbitrator fees (each a “Dispute”) that is not resolved under the arbitration requirements of these Terms — including any disputes related to arbitration that may be brought in a court pursuant to these terms or applicable law — must be resolved exclusively by a court of competent jurisdiction, federal or state, located in Los Angeles, California, and no other court. You agree to submit to the personal jurisdiction of such courts and to accept service of process from them.
In no event can any claim or action by you related to a Dispute be instituted more than one year after the cause of action arose.
Arbitration Agreement
(A) Informal Dispute Resolution Procedure. If there is an instance when you have a concern that needs special attention, or Company has concerns relating to you, Company would prefer to work with you to reach a reasonable resolution. However, we can only do so if we know and communicate about these issues. Therefore, except as described below, for any Dispute you may have with Company, you agree before initiating a formal dispute resolution process to first send a written description of your concern to info@samharris.org so we have an opportunity to address it. You agree to work with Company in good faith to resolve the concern, including by providing Company with all information necessary to assess and address your claim. Likewise, except as described below, if Company has a Dispute with you, Company will provide you reasonable written notice via the email address associated with your Company Service account, if any, or will make a reasonable effort to contact you if there is no such address. We believe this informal process should facilitate resolution. However, if the parties do not satisfactorily resolve the noticed Dispute within 60 days of the date such notice is received, then you and Company may proceed under dispute resolution provisions below.
The 60-day notice and consultation requirement above does not apply to either party if the Dispute involves either party’s intellectual property rights (defined below). For those Disputes, either party may immediately pursue relief in the manner set forth below.
(B) Mutual Arbitration Agreement. If the informal dispute resolution procedure does not lead to resolution, then either party may initiate binding arbitration as the sole means to resolve Disputes, (except as provided for herein) subject to the terms set forth below and the National Arbitration and Mediation (“NAM”) rules. If you are initiating arbitration, a copy of the demand shall also be emailed to info@samharris.org. Any demand initiating arbitration, whether filed by you or Company, must include the email address you used to create an account with Company.
Except as set forth below under “Special Procedures,” you and Company unconditionally consent and agree that any Dispute will be resolved exclusively by final and binding arbitration in accordance with Subsections 11(A)-(K) of these Terms (the “Arbitration Agreement”). (The portion of this Section 11 preceding Subsection 11(A) applies regardless of whether you have opted out of the Arbitration Agreement under Subsection 10(J).)
This Arbitration Agreement applies to claims that arose, were asserted, or involve facts occurring before the existence of this Arbitration Agreement or any prior agreement as well as claims that may arise after the termination of this Arbitration Agreement, in accordance with the notice and opt-out provisions set forth herein. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16.
The parties understand that an arbitrator and not a judge or jury will decide the Dispute, and that rights to discovery and appeals may be limited in arbitration. The parties further understand that the costs of arbitration could exceed the costs of litigation in some instances.
You hereby acknowledge and agree that by agreeing to these Terms, which include this Arbitration Agreement, you and Company are each waiving the right to a trial by a jury to the maximum extent permitted by law.
Special Procedures: Notwithstanding the parties’ decision to resolve all Disputes through arbitration, each party retains the right to (i) elect to have any claims resolved in small claims court on an individual basis for disputes and actions within the scope of such court’s jurisdiction, regardless of what forum the filing party initially chose; (ii) bring an action in a court of competent jurisdiction to protect its intellectual property rights (“intellectual property rights” in this context means patents, copyrights, moral rights, trademarks, and trade secrets and other confidential or proprietary information, but not privacy or publicity rights) or for defamation; and (iii) seek a declaratory judgment, injunction, or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court. Seeking such relief shall not waive a party’s right to arbitration under this Arbitration Agreement, and any filed arbitrations related to any action filed pursuant to this paragraph shall automatically be stayed pending the outcome of such action.
(C) Class Arbitration and Collective Relief Waiver. You and Company acknowledge and agree that, to the maximum extent allowed by law, except as set out otherwise in Subsection (F) below, any arbitration shall be conducted in an individual capacity only and not as a class or other representative action, and the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to resolve an individual party's claim; notwithstanding this acknowledgement and agreement, you agree that any arbitration involving you may proceed on a consolidated basis, but it may do so if and only if Company provides its consent to consolidate in writing.
With the exception of this Subsection (C) and Subsection (F) below, if any part of this Arbitration Agreement is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of NAM, then the balance of this Arbitration Agreement shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein. If, however, this Subsection (C) or Subsection (F) is found to be invalid, unenforceable, or illegal as applied to a Dispute, then the entirety of this Arbitration Agreement shall be null and void as to the Dispute, and neither you nor Company shall be required to arbitrate their Dispute.
(D) Arbitration Rules. The arbitration will be administered by NAM and conducted before a sole arbitrator in accordance with the rules of NAM, including, as applicable, NAM Comprehensive Dispute Resolution Rules and Procedures, Fees For Disputes When One of the Parties is a Consumer and the Mass Filing Supplemental Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The applicable NAM rules and procedures are available at www.namadr.com or by emailing National Arbitration and Mediation’s Commercial Dept at commercial@namadr.com. If NAM is not available to arbitrate, the parties will select an alternative arbitration provider.
(E) Arbitration Location and Procedure. If the amount in controversy between you and Company does not exceed $25,000, and neither party seeks injunctive or declaratory relief, then the arbitration will be conducted solely by submission of written materials that you and we submit to the arbitrator, unless (i) the arbitrator determines that a hearing is necessary or (ii) the parties agree otherwise. In such cases, the parties agree to remote participation in the hearing by video- or telephone-conference.
If the amount in controversy between you and Company exceeds $25,000, or either party seeks declaratory or injunctive relief, either party may request an arbitration hearing, and that hearing shall presumptively be held via video- or telephone-conference unless (i) the arbitrator determines there is good cause to hold an in-person hearing or (ii) the parties agree otherwise. In the event there is an in-person hearing, for all U.S. residents, the location of the hearing will be determined by mutual agreement of the parties or, if the parties cannot agree, by the arbitrator in accordance with NAM rules and applicable law. For non-U.S. residents, to the extent permissible in your country of residence, any in-person arbitration shall be held in Los Angeles, California (unless otherwise agreed by the parties).
The arbitrator or arbitration body shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator has the right to impose sanctions in accordance with the NAM rules and procedures for any frivolous claims or submissions the arbitrator determines have not been filed in good faith, as well as for a party’s failure to comply with the Informal Dispute Resolution Procedure contemplated by this Arbitration Agreement.
Subject to the applicable NAM rules and procedures, the parties agree that the arbitrator will have the discretion to allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.
Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and Company (and each of the parties’ authorized representatives and agents), and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).
(F) Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, in the event 100 or more similar arbitration demands (those asserting the same or substantially similar facts or claims, and seeking the same or substantially similar relief) presented by or with the assistance or coordination of the same law firm(s) or organization(s) are submitted to NAM (“Mass Filing”), the parties agree to administer the Mass Filing in sequential batches of approximately 100 demands per batch (as adjusted to accommodate any arbitrator strikes as described below). To the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands. The parties further agree: (i) to designate one arbitrator for each batch; (ii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iii) that 10% of the anticipated total number of batches for the Mass Filing may proceed simultaneously as set forth in this batching provision and Arbitration Agreement, but that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior set of batches are filed, processed, and adjudicated (for example: if 2000 demands were presented as part of a Mass Filing, there would be 20 anticipated batches, 10% of which – i.e., 2 batches – may proceed simultaneously); (iv) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Company and the claimants, shall only be due after your demand for arbitration is included in a set of batch proceedings and that batch is properly designated for filing, processing, and adjudication; (v) that the staged process of batched proceedings, with each batch including 100 demands, shall continue until each demand (including your demand) is adjudicated or otherwise resolved, and (vi) to make good faith efforts to resolve each batch of claims properly designated for filing, processing, and adjudication within 180 days, failing which any of the claimants whose demands have not yet begun arbitration or Company may cease arbitration and file in a court of competent jurisdiction.
Arbitrator selection for each batch shall be conducted to the greatest extent possible in accordance with the applicable NAM rules and procedures for such selection, and notwithstanding Subsection (E) above. the arbitrator will determine whether the proceedings will occur remotely via video- or telephone-conference or the location where any in-person proceedings will be conducted. Each claimant may strike the arbitrator selected by their counsel and Company for the batch and where such strike is exercised, the objecting claimant’s demand will be included in any simultaneously proceeding batch, or the next following batch.
You agree to cooperate in good faith with Company and the arbitration provider to implement such a “batch approach” or other similar approach to provide for an efficient resolution of claims, including the payment of combined reduced fees, set by NAM in its discretion, for each batch of claims. The parties further agree to cooperate with each other and the arbitration provider or arbitrator to establish any other processes or procedures that the arbitration provider or arbitrator believe will provide for an efficient resolution of claims. Any disagreement between the parties as to whether this provision applies or as to the process or procedure for batching shall be resolved by a procedural arbitrator appointed by NAM. This “Batch Arbitration” provision shall in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures or authorizing class arbitration of any kind. Unless Company otherwise consents in writing, Company does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this Subsection (F) and Subsection (C). If your demand for arbitration is included in the Mass Filing, your claims will remain tolled until your demand for arbitration is decided, withdrawn, or is settled.
The parties agree that this batching provision is integral to the Arbitration Agreement insofar as it applies to a Mass Filing. If the batching provision in this Subsection (F) is found to be invalid, unenforceable, or illegal, then the entirety of this Arbitration Agreement shall be null and void, and neither you nor Company shall be required to arbitrate any claim that is a part of the Mass Filing.
(G) Mediation Following First Batch in a Mass Filing. The results of the first completely adjudicated batch of demands will be given to a NAM mediator selected from a group of 5 mediators proposed by NAM, with Company and the remaining claimants’ counsel being able to strike one mediator each and then rank the remaining mediators and the highest collectively ranked mediator being selected. The selected mediator will try to facilitate a resolution of the remaining demands in the Mass Filing. After the results of the first batch are provided to the mediator, Company, the remaining claimants and their counsel, and the mediator will have 90 days (the “Mediation Period”) to agree on a resolution or substantive methodology for resolving the outstanding demands. If the parties are unable to resolve the outstanding demands during the Mediation Period, and cannot agree on a methodology for resolving them through further arbitrations, either Company or any remaining claimant may opt out of the arbitration process and have the demand(s) proceed in a court of competent jurisdiction. Notice of the opt-out will be provided in writing within 60 days of the close of the Mediation Period. If neither Company nor the remaining claimants opt out and they cannot agree to a methodology for resolving the remaining demands through further arbitration, the arbitrations will continue with the batching process in Subsection (F). Absent notice of an opt-out, the arbitrations will proceed in the order determined by the sequential numbers assigned to demands in the Mass Filing.
(H) Arbitrator’s Decision. The arbitrator’s decision shall be controlled by the terms and conditions of these Terms. The arbitrator will render an award within the time frame specified in the applicable NAM rules and procedures. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator will have the authority to award monetary damages on an individual basis and to grant, on an individual basis, any non-monetary remedy or relief available to an individual to the extent available under applicable law, the arbitral forum’s rules, and this Arbitration Agreement. The parties agree that the damages and/or other relief must be consistent with the terms of Section 8 (“Disclaimer of Warranties and Limitation of Liability”) as to the types and the amounts of damages or other relief for which a party may be held liable. No individual arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Attorneys’ fees will be available to the prevailing party in the arbitration if authorized under applicable substantive law governing the claims in the arbitration.
(I) Fees. Except as otherwise required by applicable law, NAM rules will govern the amount you and Company must pay to NAM for arbitration fees, including with respect to any fee waivers. However, if the arbitrator determines that your claim(s) were frivolous or asserted in bad faith, you understand and agree that consistent with NAM’s rules permitting sanctions, and as set forth in this Arbitration Agreement, you may be required to reimburse Company for arbitration fees (including attorneys’ fees) Company incurred to defend your claim(s).
The parties further agree that NAM has discretion to reduce the amount or modify the timing of any administrative or arbitration fees due under NAM’s Rules where it deems appropriate (including as specified in Subsection (F)) provided that such modification does not increase the costs to you, and you further agree that you waive any objection to such fee modification. The parties agree that a good-faith challenge by either party to the fees imposed by NAM does not constitute a default, waiver, or breach of this Arbitration Agreement while such challenge remains pending before NAM, the arbitrator, and/or a court of competent jurisdiction, and that any and all due dates for those fees shall be tolled during the pendency of such challenge.
You are responsible for your own attorneys’ fees, except to the extent otherwise provided by these Terms, NAM rules, and/or applicable law. Company won’t seek its attorneys’ fees and arbitration costs from you with respect to claims that you file, unless the arbitrator determines that your claim is frivolous, or you have engaged in conduct that is considered sanctionable under either NAM’s rules or Federal Rule of Civil Procedure 11. Company may seek attorneys’ fees as provided by these Terms, NAM rules, and/or applicable law for claims it pursues against you.
(J) 30-Day Right to Opt Out. You have the right to opt out and not be bound by the Arbitration Agreement by sending written notice of your decision to opt out to info@samharris.orgwith the subject line, “ARBITRATION OPT-OUT”. You must send this notice from the email address associated with your account (if you have one), or if this is not possible, you must promptly cooperate with us to identify your account if you have one. Regardless of the email address you use, you must promptly cooperate with any request from us to authenticate that you are the accountholder (if you hold an account) and that you are the actual sender of the notice. Your notice must include your name and address, the email address you currently use to access your Company account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. The notice must be sent within thirty (30) days of first becoming subject to this Arbitration Agreement. You become subject to this Arbitration Agreement at the same time you become subject to the rest of these Terms. Otherwise, you shall be bound to arbitrate disputes in accordance with this Arbitration Agreement. If you opt out of the Arbitration Agreement, you may exercise your right to a trial by jury or judge, as permitted by applicable law, but any prior existing agreement to arbitrate disputes under a prior version of the Arbitration Agreement will not apply to claims not yet filed. If you opt out of the Arbitration Agreement, Company also will not be bound by it.
(K) Changes. Company may change this Section 11 at any time. Company will provide thirty (30) days’ notice of any material changes to this Section 11 by posting the update on samharris.org, sending an email to the address it has on file for your Company Services account, if any, or other reasonable means. Any such changes will go into effect at 11 a.m. Eastern Time 30 days after Company provides this notice and apply to all claims not yet filed regardless of when such claims may have accrued. If Company changes this Section 11 after the date you first accepted this Section 11 (or accepted any subsequent changes to this Section 11), you agree that your failure to terminate the Terms as described in Section 1 by the time it takes effect will be deemed acceptance of those changes.
If you have a dispute with Company that is not subject to the binding arbitration provisions in Section 11 above, then to the full extent permitted by law, you agree you may only resolve your disputes with Company on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, private attorney general or other representative action. Likewise, these Terms and this class action waiver preclude you from participating in or recovering relief in any current or future class, private attorney general and/or other representative action brought against Company by someone else.
The use of the Podcast requires use of a computer system or mobile device. Use of our Podcast, our Site, and other Company Services made available online or that are capable of connecting to the Internet (collectively, “Online Services”) may require an Internet connection (such as wireless mobile data service), which you must obtain at your cost from your wireless carrier or other Internet service provider. You are responsible for obtaining and paying for such additional services and obtaining a suitable device, including without limitation all related usage charges. You may be required to send and receive, at your cost, electronic communications related to the Online Services, including without limitation administrative messages, service announcements, diagnostic data reports, and Podcast updates, from Company, your mobile carrier or third-party service provider. If you do not have an unlimited data plan with the provider you use for an Internet connection, you may incur additional charges. The Online Services may cause your device to send and receive data at your cost for those and other reasons over the Internet whether or not you have taken a specific action in the Company Services. These and other aspects of the Company Services may involve activity that uses your device’s battery or other resources with or without involvement from or notice to you (including in the background while you have closed and are not actively interacting with the Company Services), which may shorten the life of your battery or other resources and cause you to incur unexpected energy costs. Company will have no liability for any of that.
You are solely responsible for obtaining any additional subscription, connectivity, or energy services or equipment necessary to access and use the Online Services, including but not limited to payment of all third-party fees associated therewith, including fees for information sent to or through the Online Services.
We do not warrant that the Online Services will be compatible with your network provider or device. You acknowledge and agree that we may release updates to the Online Services and that you may be required to install any such update (and/or, in some cases, an update or replacement to your browser or device) in order for the Online Service to continue functioning properly. You may not export any Company Services except in compliance with all applicable laws.
Severability. If any provision of these Terms is deemed unlawful, void, or for any reason unenforceable by an arbitrator or court of competent jurisdiction, the validity and enforceability of any remaining provisions shall not be affected.
Entire Agreement. These Terms, the Privacy Policy and any other policies or guidelines referenced within these Terms constitute the entire and only agreement between Company and you with respect to the Company Services. These Terms supersede any prior or contemporaneous agreements, representations, warranties and understandings, written or oral, regarding these Terms or the Company Services.
No Waiver. The failure of Company and its Affiliated Parties to insist upon strict adherence to any term of these Terms shall not constitute a waiver of such term and shall not be considered a waiver or limit that party’s right thereafter to insist upon strict adherence to that term or any other term of these terms of service.
Assignment. These Terms, and any rights, licenses or obligations you receive hereunder, cannot be transferred or assigned by you, and you will not attempt to do so. Any attempted transfer or assignment in violation hereof shall be null and void.
If you have any comments, questions, or concerns regarding these Terms or the Company Services, please contact us at info@samharris.org. We would like to promptly address any issue.
Four Elephants Media, Inc.
16633 Ventura Blvd., Suite 815
Encino, CA 91436