Terms of use

These Terms of Service (“Terms”) govern your use of NEWSWELL’s digital platforms, including without limitation Times of San Diego, Stocktonia, and any other digital platforms owned by NEWSWELL (“NEWSWELL”), and any other sites, applications, software, services, content, and advertising that we operate and link to these Terms (collectively, the “Services”).

By using the services, you acknowledge that you have read and understand these Terms and agree to be bound by them. By using the Services, you acknowledge that you also understand the information collection, use, and disclosure practices described in the NEWSWELL Privacy Policy.

Please note that section 20 contains a binding arbitration clause and class-action waiver that affects your rights when resolving any dispute with us.

1.   REVISION DATE

These Terms were last revised on Nov. 1, 2024. 

2.   ACCEPTANCE OF TERMS

NEWSWELL provides the Services to you subject to the following Terms. By registering with or by using the Services, and in exchange for NEWSWELL’s agreement to provide the Services to you, you agree to be bound by these Terms.

These Terms may be revised from time to time. We will indicate at the beginning of the Terms when they were last revised. Your continued use of the Services constitutes your agreement to all terms of the most recent Terms.

You must be at least thirteen (13) years of age or have written consent from a parent or legal guardian to register for use of the Services. Any registration by anyone under 13 without written consent from a parent or legal guardian is unauthorized, unlicensed, and in violation of these Terms. By registering for use of the Services, you represent and warrant that you are at least 13 years old or have written consent from a parent or legal guardian. If NEWSWELL learns it has collected personal information from a minor without written consent from a parent or legal guardian, NEWSWELL will delete that user’s account and personal information. This provision is not intended to restrict an individual’s ability to access the Services without providing personally identifiable information.

NEWSWELL reserves the right to refuse access to the Services or to any other service or product provided by NEWSWELL, without notice, at any time, and for any reason.

3. PROVISION AND MODIFICATION OF SERVICES

The Services includes sites, applications, software, services, content, and advertising provided by NEWSWELL. However, some of the content of the Services may be provided by users who submit or post content on the Services. In addition, the Services includes advertising placed by advertisers and ad networks. NEWSWELL takes no responsibility for such content.

You understand and agree that the Services are provided to you on an AS IS and AS AVAILABLE basis. NEWSWELL disclaims all responsibility for the availability, timeliness, security, or reliability of the Services or any feature or software included in the Services. NEWSWELL also disclaims all responsibility for the acts or omissions of third parties whose services, software, content, or advertising may be utilized in connection with the Services. You agree that NEWSWELL shall not be liable for any such acts or omissions or any faults of the Services.

NEWSWELL reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. The Services also may be subject to interruptions, caused by NEWSWELL or others. You agree that NEWSWELL will not be liable for any modification, suspension, interruption, or discontinuance of the Services.

4. REGISTRATION AND PROFILE CREATION

Certain features of the Services may require you to register and create a user profile with a third-party provider to display information on our websites. For instance, some of the Services may allow users to register a profile (“Profile”) in order to provide comments on that respective website. In consideration of your use of the Services, you agree to provide when registering for your Profile, and to promptly update the information you provide in connection with creating or maintaining your Profile in order to keep it accurate, current, and complete. You also agree that you will be responsible for all content posted using your Profile. You agree that you will not register for more than one Profile. You agree to not register for a Profile or email on behalf of anyone other than yourself without that individual’s consent, and you will not use someone else’s Profile or email without that user’s consent.

5. CONDITIONS ON USE OF THE SERVICES

NEWSWELL grants you permission to access and use the Services as set forth in these Terms, and in exchange you agree as follows:

1. 1. You will access and use the Services solely for your own personal, non-commercial use or as permitted under the Republication Terms. You may download, print, or share content for personal use, classroom instruction, or educational presentations without requesting permission, provided that the content is not altered, and appropriate credit is given to NEWSWELL;
   2. You will not use the Services in any illegal manner, for any illegal purpose, in any other manner that could damage, disable, overburden, or impair the Services, or in any manner inconsistent with these Terms;
   3. You will not attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of the Services;
   4. You will not defeat or interfere with any security feature of the Services, or attempt to do so;
   5. You will not alter or modify any content or component of the Services other than content you have submitted to or posted on the Services;
   6. Except as permitted by the Republication Terms, you will not reproduce, duplicate, copy,  create derivative works of, sell, trade, resell, or exploit any content, component, or feature of the Services without the prior written permission of NEWSWELL, except for content you have submitted to or posted on the Services, or content which you have the prior written permission of the owner to use;
   7. You will not use any automated system, software, or device to generate and send unsolicited communications to or through the Services;
   8. You will not engage in unauthorized spidering, “scraping,” or harvesting of content or personal information, or use any other unauthorized automated means to compile information from the Services without prior written permission of  NEWSWELL;
   9. You will not use the Services or any content or component of the Services in connection with the development or training of any program, algorithm, machine learning, or artificial intelligence tool;
   10. You will not collect or harvest any personally identifiable information, including without limitation account names or email addresses, from the Services, nor use the communication systems provided by the Services for purposes of sending any commercial solicitation;
   11. You will not upload, post, transmit, share, or otherwise make available any material that contains software viruses or any other computer code designed to interfere with the functionality of or obtain any nonpublic information from any computer software or hardware or telecommunications equipment;
   12. You will not impersonate any person or entity or otherwise misrepresent your affiliation or the origin of materials you transmit;
   13. You will not harass or intimidate any other user of the Services; and
   14. You will not engage in any other conduct that restricts or inhibits any person from using or enjoying the Services, or that, in our sole judgment, exposes us or any of our users, affiliates, or any other third party to any liability, damages, or detriment of any type.

6.   REPUBLICATION TERMS

Media partners interested in publishing or airing content from NEWSWELL must comply with these Terms and the Republication Terms.

The Republication Terms apply to any content and components of NEWSWELL’s Services except for User Content and unless otherwise indicated (“NEWSWELL Content”), including without limitation, the software, text, photos, video and audio content, graphics, illustrations, and features, and all trademarks, service marks, logos, data visualization, and data analysis contained therein. All NEWSWELL content is published under Creative Commons License BY-NC-ND 4.0 unless otherwise indicated.

7. YOUR CONDUCT AND USE OF THE SERVICES

You acknowledge that you are solely responsible for your Profile if you register one (including your name, image or likeness, and biographical information), text, comments, and other content that you post, publish, upload, or display on the Services, or transmit to or share with others using the Services or third parties to be displayed on the Services (collectively “User Content”), and for the consequences of posting, publishing, uploading, displaying, or sharing any User Content. You understand and agree that we are not responsible for any User Content. We are not obligated to publish or use your User Content. We may monitor, review, edit, remove, delete, or disable access to your User Content at any time, without prior notice and in our sole discretion, for any or no reason.

You are prohibited from providing User Content that:

1. • Infringes on the copyright, trademark, patent, or other intellectual property rights of any third party;
   • Is false, misleading, libelous, defamatory, obscene, abusive, hateful, or sexually explicit;
   • Violates a third party’s right to privacy or publicity;
   • Degrades others on the basis of age, gender, race, class, ethnicity, national origin, religion, sexual preference, gender identity, gender expression, disability, economic status, or other protected classification;
   • Contains language or material intended to intimidate or to incite violence; or
   • Violates any applicable local, state, national, or international laws.

You understand and agree that any User Content you submit or post on the Services or third parties to be displayed on the Services is intended to and generally may be made public, and that once made public, User Content cannot be made private again. You consent to the public dissemination of all User Content you submit or post using the Services. However, your email address will not be considered User Content unless you make it publicly available on the Services.

You are prohibited from using the Services to post, transmit, or share User Content that you did not create or that you do not have permission to post, transmit, or share. You affirm that you own or have all intellectual property rights (including without limitation copyright and trademark rights), licenses, and permissions to User Content you provide that are needed to use and to authorize NEWSWELL to use that User Content in the manner described in these Terms. By submitting or posting User Content, you warrant that it does not infringe any intellectual property rights of another person. You represent that you have obtained the consent of all individuals who are identifiable in your User Content, or of the individual’s parent or legal guardian if the individual is under 18 years old, to include the individual’s likeness in your User Content and for us to enjoy all of the rights and privileges that you grant to us under these Terms, including without limitation the right to use the individual’s likeness in our advertising and marketing activities.

You are prohibited from using the Services to post, transmit, or share child sex abuse material (“CSAM”) or any pornography. The use of the Services to publish or transmit CSAM or any pornography, threats, harassment, or abusive language will not be tolerated. If identified, it may be reported to law enforcement authorities, and will result in termination of your account.

You are prohibited from using the Services to post, transmit, or share User Content that is obscene, defamatory, or invasive of the privacy of another person, graphically violent, physically threatening, intended for any illegal purpose, or otherwise inappropriate on a site intended for a general audience. By submitting or posting User Content, you warrant that it is not obscene, defamatory, or invasive of the privacy of any other person, or otherwise illegal.

You understand that NEWSWELL does not promise that User Content you submit to or post on the Services will be maintained or preserved by NEWSWELL. You are solely responsible for creating backup copies of and replacing any User Content you submit to or post on the Services. You agree that NEWSWELL has no responsibility or liability for the deletion of, or the failure to store or to transmit, any User Content or other communications provided on or through the Services. NEWSWELL retains the right to create limits on use and storage at its sole discretion, at any time, with or without notice.

You are prohibited from using the Services to post, transmit, or share User Content to promote any other product or service on behalf of any person or entity that sells, provides, or offers the product or service.

NEWSWELL may provide RSS feeds and other content feeds on or through the Services and through other websites or services. The feeds available through our Services are covered by these Terms. You may use these feeds for free for your personal, noncommercial use, subject to the Republication Terms.

8. RIGHTS TO AND USE OF THE CONTENT ON THE SERVICES

Except for User Content and unless otherwise indicated, all content and components of the Services (“NEWSWELL Content”), including without limitation, the software, text, photos, video and audio content, graphics, illustrations, and features, and all trademarks, service marks, logos, data visualization, and data analysis contained therein, are owned by or licensed to NEWSWELL, subject to any copyrights or other intellectual property rights held by others pursuant to law. NEWSWELL reserves all rights to NEWSWELL Content and any other component or content of the Services not expressly granted to you by these Terms.

By submitting or posting User Content to the Services, you grant NEWSWELL and our news organization partners a royalty-free, irrevocable, perpetual, nonexclusive, transferable, fully paid, fully sublicensable, worldwide license to: (1) use, reproduce, publish, publicly perform, publicly display, modify, adapt, reformat, translate, excerpt (in whole or in part), and distribute the User Content in any way we want or through any medium now known or hereafter invented, for any purpose; (2) to prepare derivative works using the User Content, or to incorporate it into other works, for any purpose; and (3) to grant and authorize sublicenses of any or all of the foregoing rights. You further grant NEWSWELL, our news organization partners, and their licensees the right to contact you in connection with your User Content and to use your name, city and state and other information that you have provided in connection with the User Content.

You may remove your User Content from the Services at any time. If you choose to remove your User Content, the User Content will no longer appear on the Services. However, you acknowledge that NEWSWELL may retain archived copies of your User Content and that NEWSWELL will retain the rights to the content granted by these Terms, including the royalty-free, irrevocable, perpetual, nonexclusive, transferable, fully paid, fully sublicensable, worldwide license to: (1) use, reproduce, publish, publicly perform, publicly display, modify, adapt, reformat, translate, excerpt (in whole or in part), and distribute the User Content in any way we want or through any medium now known or hereafter invented, for any purpose; (2) to prepare derivative works using the User Content, or to incorporate it into other works, for any purpose; and (3) to grant and authorize sublicenses of any or all of the foregoing rights. User Content republished by NEWSWELL might not be removed from the Services.

NEWSWELL does not assert any ownership over your User Content; rather, as between NEWSWELL and you, and subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.

NEWSWELL may obtain and exercise intellectual property rights over compilations, collective works, derivative works, or revisions that incorporate User Content you have provided. In that case, the rights we obtain will apply only to the compilation, collective work, derivative work, or revision; as between NEWSWELL and you, subject to the rights granted to us in these Terms, you will retain full ownership of and rights to your User Content.

When you post User Content to the Services, you also authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting, maintenance, and storage of the User Content on the Services.

9.   OBJECTIONABLE OR INAPPROPRIATE CONTENT

Comments sections often include offensive, harmful, inaccurate or otherwise offensive or objectionable material. In some cases, these Services may include content that has been mislabeled or is otherwise deceptive. Please use caution and common sense and exercise proper judgment when using the Services. NEWSWELL does not endorse, support, represent, or guarantee the truthfulness, accuracy, or reliability of any content appearing on the Services at the direction of others. NEWSWELL does not endorse any opinions expressed by others on the Services. You acknowledge that any reliance on material appearing on the Services will be at your own risk.

NEWSWELL has no obligation to routinely review or revise content submitted to or posted on the Services by others. However, NEWSWELL may read any such content, and reserves the right to refuse to distribute any such content, to remove any content from the Services, or to edit any content, in its sole discretion.

If you find content appearing on the Services that you believe violates these Terms, or that is offensive or otherwise objectionable, you may inform NEWSWELL by sending a message to info@asunewswell.org. NEWSWELL will review your message and the content to which you object (assuming it is still on the Services). We may remove the content if, in our judgment, it is inappropriate. However, please understand that deciding whether content is inappropriate is a judgment call, and that NEWSWELL is not legally responsible for content that it does not originate. Neither is NEWSWELL legally responsible for keeping content that it deems inappropriate off the Services.

If content you have submitted is not published or is removed, please review these Terms and understand that the value of the Services is, to a large extent, based on providing an experience that is both enlightening and pleasant for the people who use the Services.

NEWSWELL reserves the right to access, read, preserve, and disclose any information it reasonably believes is necessary to do any of the following: (1) satisfy any applicable law, regulation, legal process, or governmental request; (2) enforce these Terms, including investigation of potential violations hereof; (3) detect, prevent, or otherwise address fraud, security, or technical issues; (4) respond to user support requests; or (5) protect the rights, property, or safety of NEWSWELL, its users, or the public. You agree that NEWSWELL will not be liable for exercising or failing to exercise any of these rights.

10. USE, PROMOTION, AND DISTRIBUTION OF CONTENT

You understand and agree that you will receive no compensation from NEWSWELL for any User Content you submit to or post on the Services.

By submitting User Content to NEWSWELL or posting it on the Services, you agree as follows:

1. 1. User Content you submit to or post on the Services may be organized, arranged, formatted, categorized, designated, displayed, and edited as NEWSWELL determines, in its sole discretion.
   2. NEWSWELL, in its discretion, may place your User Content in a location or locations of its choosing on the Services, and may apply designations currently existing or created in the future to your User Content. You will have no claim for compensation or any other remedy based on the location or designation of User Content you submit.
   3. NEWSWELL, in its discretion, may modify your User Content as described in these Terms. NEWSWELL will not be responsible for any claims arising from modifications that do not (a) substantially change the meaning of the content, (b) add new and different meanings, or (c) result in the addition of new material that give rise to a claim.

11. OTHER INTELLECTUAL PROPERTY RIGHTS

NEWSWELL logos and product or service names are trademarks of NEWSWELL. All other trademarks appearing on the Services are trademarks of their respective owners and our reference to them does not imply or indicate any approval or endorsement by their owners unless such approval or endorsement is expressly made. References to other names and trademarks are necessary in the course of providing information and commentary about the subjects addressed on the Services.

12. SPONSORS, ADVERTISERS, AND THIRD PARTIES

The Services may contain links to sponsor, advertiser, or other third-party websites that are not owned or controlled by NEWSWELL. Inclusion of, linking to, or permitting the use or installation of any third-party site, applications, software, content, or advertising does not imply approval or endorsement thereof by NEWSWELL. NEWSWELL has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third parties.

Your correspondence or dealings with, or participation in promotions of, sponsors, advertisers, or other third parties found on or through the Services, are solely between you and such third parties. You agree that NEWSWELL shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such sponsors, third parties, or advertisers on the Services.

13. PRIVACY

As a condition of using the Services, you acknowledge and accept the terms of the Privacy Policy, which may be updated from time to time, as expressed in the most recent version that exists at the time of your use. You agree that NEWSWELL may access or disclose your personal information, including the content of your communications, if we are required to do so in order to comply with any valid legal process or governmental request (such as a court order, search warrant, subpoena, civil discovery request, or statutory authorization), or as otherwise provided in these Terms or the Privacy Policy.

14. COPYRIGHT

The Services are protected under the copyright laws of the United States and other countries. The copyright to all parts of the Services are owned by us or our licensors under the United States Copyright Act or international copyright laws. Except for content that you have posted on the Services and as provided by the Republication Terms, you may not publish, reproduce, distribute, display, perform, edit, adapt, modify, or otherwise exploit any part of the Services without our written consent except as provided in these Terms.

NEWSWELL respects the intellectual property rights of others. We prohibit users from uploading, posting, or otherwise transmitting materials that violate the intellectual property rights of others. When we receive notification of alleged copyright infringement that complies with the Digital Millennium Copyright Act (17 U.S.C. § 512, the “DMCA”), we promptly remove or disable access to the allegedly infringing material. We also terminate the accounts of repeat infringers.

If you are a copyright owner or an agent thereof and you believe that any content on the Services infringes upon your copyrights, you may submit a notice by following the directions listed below.

15. TERMINATION

You may terminate your use of or participation in the Services at any time. Upon request, we will deactivate your Profile. However, comments or other User Content you have submitted to or posted on the Services may remain there and your deactivated Profile may remain associated with that User Content. In addition, the rights granted to NEWSWELL with respect to User Content or other information you have submitted to NEWSWELL or posted on the Services will survive the termination of your use or participation.

NEWSWELL may, in its sole discretion, terminate your account, deactivate your Profile and any content or information that you have posted on the Services, and/or prohibit you from using or accessing the Services, at any time, with or without notice, for any reason, including but not limited to violation of these Terms.

16. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEWSWELL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

In particular, and without limitation, NEWSWELL makes no warranty that (1) the Services will meet your requirements; (2) the Services will be uninterrupted, timely, secure, or error free; (3) the results that may be obtained from the use of the Services will be accurate or reliable; (4) the quality of any products, services, information, or other material purchased or obtained by you through the Services will meet your expectations; (5) any errors in the contents or components of the Services will be corrected; or (6) that the Services is free of viruses or other harmful components.

No advice or information, oral or written, obtained by you from NEWSWELL shall create any warranty not expressly stated in these Terms.

17. LIMITATION OF LIABILITY

YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEWSWELL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SERVICES. ANY CLAIM ARISING OUT OF OR CONNECTED WITH THE SERVICES WILL BE LIMITED TO THE GREATER OF $100 OR THE AMOUNT THAT YOU PAID TO ACCESS THE SERVICES DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.

In particular, and without limitation, NEWSWELL will have no liability for damages arising from (1) accessing, downloading, or otherwise obtaining any content or component of the Services, even if it results in the inadvertent transfer of harmful computer code, such as viruses, malware, or spyware; (2) unauthorized access to or disclosure or alteration of your transmissions or data; (3) statements or conduct of any third party on the Services; or (4) as otherwise provided in these Terms.

18. EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS ON LIABILITY AND DAMAGES MAY NOT APPLY TO YOU.

19. INDEMNIFICATION

You agree to hold harmless and indemnify NEWSWELL, and its parent, subsidiaries, affiliates, officers, agents, and employees from and against any third-party claim arising from or in any way related to your User Content or your use of the Services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs, and attorneys’ fees, of every kind and nature. NEWSWELL will make reasonable efforts to provide you with written notice of any such claim, suit or action, but the failure of NEWSWELL to provide such notice will not relieve you of these obligations.

20.   DISPUTE RESOLUTION AND GENERAL SEVERABILITY

If any provision of the Terms is found to be invalid or unenforceable, the parties agree that the provision will be enforced to the maximum extent permissible, the arbitrator or court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.

CHOICE OF LAW

The agreement created by these Terms, and any dispute arising from or relating to these Terms or the provision or use of the Services, will be governed by the laws of the State of Arizona, without giving effect to its conflict of laws provisions.

For any dispute arising from or relating to these Terms or the Services, you agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in the State of Arizona, County of Maricopa. You hereby waive any and all jurisdictional and venue defenses otherwise available.

ARBITRATION AGREEMENT & CLASS ACTION WAIVER – IMPORTANT – PLEASE REVEIW AS THIS MAY AFFECT YOUR LEGAL RIGHTS. APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW. 

You and NEWSWELL agree to submit any action, proceeding, or counterclaim brought by either of the parties against the other on any matters whatsoever arising out of or related to these Terms or the provision or use of the Services (“Claim”) to binding, individual arbitration, unless expressly provided otherwise in this Section 19, and not in a class, representative or consolidated action or proceeding. You and NEWSWELL agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms and that YOU AND NEWSWELL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. This Section 19 shall survive the termination of these Terms. If any portion of this Section 19 is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of Section 19 and all other terms of these Terms shall continue to be enforceable and valid.

You and NEWSWELL agree that the only exceptions to Section 19 are: (1) you or NEWSWELL each may seek to resolve an individual Claim in small claims court if it qualifies; (2) you or NEWSWELL each may seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights; (3) you may opt out of changes to these arbitration terms if NEWSWELL changes any terms of this Section 19 after the date you first accepted these Terms or any subsequent changes to these Terms and you provide us written notice of your rejection to the new changes to Section 19, personally signed by you, by certified mail to the attention of NEWSWELL’s Legal Department at the ATTN: NEWSWELL LEGAL Dep’t, PO Box 2260, Tempe, Arizona  85280-2260 within 30 days of the date such new change became effective, as indicated by the later of (1) the “Last Updated” date of the Terms you seek to reject or (2) the date of NEWSWELL’s email to you notifying you of such change; however, if you are opting out of an updated version of this arbitration provision, you understand that you will remain subject to the prior version of any arbitration provision to which you had previously agreed.

You and NEWSWELL agree that, prior to initiating an arbitration or other legal proceeding, you and NEWSWELL will attempt to negotiate an informal resolution of the Claim. To begin this process, and before initiating any arbitration or legal proceeding against NEWSWELL, you must send a Notice of Claim (“Notice”) by certified mail to the attention of NEWSWELL’s Legal Department at: ATTN: NEWSWELL Legal Dep’t, PO Box 2260, Tempe, Arizona 85280-2260. For purposes of these Terms, initiating an arbitration means filing an arbitration demand (“Demand”).

Your Notice to NEWSWELL must contain all of the following information: (1) your full name, address, your username if registered with NEWSWELL, and the email address associated with your account with NEWSWELL; (2) a detailed description of the nature and basis of the Claim; (3) a description of the relief you want, including any money damages you request; and (4) your signature verifying the accuracy of the Notice and, if you are represented by counsel, authorizing NEWSWELL to disclose information about you to your attorney.

After receipt of your Notice, you and NEWSWELL shall engage in a good-faith effort to resolve the dispute for a period of 60 days, which both sides may extend by written agreement (“Informal Claim Resolution Period”). During the Informal Claim Resolution Period, neither you nor NEWSWELL may initiate an arbitration or other legal proceeding.

If the Claim is not resolved during the Informal Dispute Resolution Period, you may initiate an individual arbitration as provided below.

Any arbitration shall be determined by arbitration in Maricopa County, Arizona before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-streamlined-arbitration/ (the “JAMS Rules”). Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In any instance where the applicable JAMS Rules and these Terms are inconsistent, these Terms shall control.

An arbitration Demand filed with JAMS must include a certification signed by the filing party verifying compliance with the Initial Dispute Resolution and Notification requirements and other requirements set out in this Section 19. Payment of all arbitration filing fees and costs will be governed by the applicable JAMS Rules. If you prevail in arbitration, NEWSWELL will reimburse you for any portion of the arbitration filing fees you paid that exceeded the amount you would have paid to file a complaint in a court of competent jurisdiction. If NEWSWELL prevails in arbitration or the arbitrator finds that your claim was frivolous or filed in bad faith, the arbitrator may award NEWSWELL reimbursement from you of NEWSWELL’s arbitration filing fees and costs.

If JAMS fails or declines to conduct the arbitration for any reason, we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint the arbitration administrator.

Any arbitration hearing will take place in or nearest to Maricopa County, Arizona, unless you and NEWSWELL agree to a different location or to a virtual hearing.

The arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement, except that only a court of competent jurisdiction (and not an arbitrator) shall have the exclusive authority to resolve any claim that all or part of the class action waiver set forth in these Terms or the Mass Filing procedures set forth in this Section 19 are unenforceable, unconscionable, void, or voidable. Exclusive jurisdiction for all disputes that are not required to be arbitrated will be the state and federal courts sitting in Maricopa County, Arizona, USA and you consent to the jurisdiction of those courts.

YOU AND NEWSWELL AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF US IS WAIVING THE RIGHT TO BRING OR PARTICIPATE IN A MASS ARBITRATION. NEWSWELL’s receipt of one or more Notice(s) of substantially similar claims brought by or on behalf of 25 or more claimants (including you) within a 60-day period (“Mass Arbitration”) shall be subject to the additional procedures set forth below. Claims included in a Mass Filing, if not resolved during the Informal Dispute Resolution Period, may proceed only in accordance with the procedures set out below, and subject to the JAMS Mass Arbitration Procedures and Guidelines (“JAMS Mass Arbitration Procedures”, available at https://www.jamsadr.com/mass-arbitration-procedures) to the extent not contrary to these Terms. If a court determines that these additional terms with regard to are not enforceable as to your claim, then your claim may only proceed individually in court consistent with these Terms.

1. Batching: You and NEWSWELL agree that your and other individuals’ claims deemed by NEWSWELL a Mass Arbitration may be filed with JAMS in batches of no greater than 50 individuals’ claims at one time, with 25 claims (or half of the total number of claims in a batch, if less than 50) selected by counsel for you and other claimants and 25 claims (or half of the total number of claims in a batch, if less than 50) selected by NEWSWELL. After your claim is batched and permitted to be filed as a Demand, you and NEWSWELL agree that selection and appointment of an arbitrator for your Demand shall be governed by the JAMS Mass Arbitration Procedures.
2. First (Bellwether) Batch: The first batch of up to 50 Demands are the Bellwether Arbitrations. If your claim is included in the Bellwether Arbitrations, you and NEWSWELL shall cooperate with the arbitrator assigned to your arbitration to resolve your claim within 120 days of the initial pre-hearing conference.
3. Stay of Filing of Other Claims: If your claim is not among those selected for the Bellwether Arbitrations, your claim cannot be filed until it is assigned to a batch and authorized to be filed in a later stage of this process. No arbitration fees will be assessed on you or NEWSWELL in connection with your claim unless and until it is assigned to a batch and authorized to be filed with JAMS.
4. Mediation: After the Bellwether Arbitrations are completed, if your claim remains unresolved, you and NEWSWELL agree to mediate your claim along with any other unresolved claims included in the Mass Filing (”Global Mediation”). The mediator will be selected according to the procedure set forth in the JAMS Rules, and NEWSWELL will pay the mediator’s fees. The Global Mediation shall be completed within 120 days of the selection of a mediator, unless extended by written agreement between you and NEWSWELL.
5. Election To Proceed in Court: If Global Mediation is not successful in resolving your claim, and 100 or more claims included in the Mass Filing remain unresolved, you or NEWSWELL may opt out of arbitration and elect to have your claim resolved in court consistent with these Terms. You or NEWSWELL must exercise this election within 45 days of the completion of Global Mediation.
6. Sequential Arbitration of Remaining Batches: If neither you nor NEWSWELL opt out of arbitration, another batch of no greater than 50 individuals’ claims will be selected from the Mass Filing, with 25 claims (or half of the total number of claims in a batch, if less than 50) selected by counsel for claimants and 25 claims (or half of the total number of claims in a batch, if less than 50) selected by NEWSWELL. If your claim is included in this next batch of 50 claims, your claim will be filed with JAMS, and you and NEWSWELL shall cooperate with the arbitrator assigned to your arbitration to resolve your claim within 120 days of the initial pre-hearing conference. The process of batching up to 50 individual claims at a time will continue until the parties resolve all claims included in the Mass Filing. No unbatched claim can proceed to be filed as a Demand until the previous batch has been resolved.
7. Tolling. For any claim subject to these Mass Filing procedures, any statute of limitations applicable to your claim shall be tolled from the date the Informal Dispute Resolution Period begins until the earlier of (1) the date your arbitration Demand is filed, or (2) the date you or NEWSWELL opts out of arbitration pursuant to subsection (e) above of this Section 20.

RELATIONSHIP OF THE PARTIES

You agree that no joint venture, partnership, employment, or agency relationship exists between you and NEWSWELL as a result of these Terms or your access to and use of the Services.

NONWAIVER

The failure of NEWSWELL to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision.

LIMITATION OF LEGAL ACTIONS

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Terms, or the provision or use of the Services, must be filed within one (1) year after such claim or cause of action arose or be forever barred.

ENTIRE AGREEMENT

These Terms, together with the Privacy Policy, constitute the entire agreement between you and NEWSWELL and govern your use of the Services, superseding any prior agreements between you and NEWSWELL. You also may be subject to additional terms and conditions that may apply when you use or purchase certain products or services, including third-party products or services.