Last Updated: August 23, 2013
THE SERVICE IS NOT INTENDED TO PROVIDE LEGAL ADVICE OR TO BE A SUBSTITUTE FOR A WILL, TRUST, OR POWER OF ATTORNEY. YOU SHOULD CONTACT A QUALIFIED ATTORNEY TO OBTAIN LEGAL ADVICE REGARDING USE OF THE SERVICE.
1. Eterniam Service Overview. Eterniam’s platform provides a place for paying subscribers (“Subscribers”) to upload, store, share, and publish content owned by the Subscriber, including messages, reviews, photos, video, images, folders, data, documents, text, and other types of works (collectively, “Digital Assets”) and to designate specific beneficiaries of your Digital Assets upon your death (“Beneficiaries”).
2. Beneficiaries. Subscribers may provide us with names and contact information for Beneficiaries who will have rights to access, use, copy, and download Digital Assets. A Beneficiary must register for an Eterniam account to access designated Digital Assets, but will not be required to pay any fees to do so. Eterniam may provide Subscriber the option to elect whether the Beneficiary may access the Digital Asset at the time the Beneficiary is designated, or only once the Subscriber is deceased. When designating a Beneficiary, you represent and warrant that you have all necessary rights, consents, or permissions to use, and to authorize Eterniam to use, that Beneficiary’s contact information.
3. Digital Assets
3.1 Digital Assets Generally. You retain copyright and any other proprietary rights that you may hold in the Digital Assets that you upload to the Service. The default setting for all Digital Assets is “private,” which means that the assets are unavailable to be viewed or otherwise accessed by Beneficiaries or the public. You must specifically designate Digital Assets for Beneficiaries or as “public” to share the Digital Assets with others.
3.2 License Grant to Beneficiaries. By designating a Beneficiary for a Digital Asset, you hereby: (i) permit that Beneficiary to access and download copies of that Digital Asset as enabled by the functionality of the Service; and (ii) grant that Beneficiary a non-exclusive, sublicensable, transferable, royalty-free, fully paid license to copy, reproduce, distribute, publish, prepare derivative works of, publicly perform, publicly display, use, and otherwise exploit that Digital Asset. The license you grant in Section 3.2(ii) is perpetual and irrevocable unless you specifically revoke the license by a statement in your valid last will and testament.
3.3 Limited License Grant to Eterniam. By uploading Digital Assets, you grant Eterniam a worldwide, perpetual, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your Digital Assets solely to provide the Service as selected by you. This use of your Digital Assets by Eterniam will be without any compensation paid to you, your Beneficiaries, successors, or heirs.
4. Eligibility. Subscribers must be at least 18 years of age. By registering for a Subscriber account, you represent and warrant to us: (i) that you are at least 18 years old; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
5. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
6. Payment. Access to the Service, or to certain features of the Service, may require you to pay fees, including a periodic subscription fee. Before you are required to pay any fees, you will have an opportunity to review and accept the applicable fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Eterniam may change the fees for the Service or any feature of the Service, including by adding additional fees or charges, on a going-forward basis at any time. Eterniam or its third party payment processors will charge the Payment Method you specify at the time of purchase (“Payment Method”), which you represent and warrant that you are authorized to use. You authorize Eterniam to charge all sums described in these Terms to that Payment Method. If you pay any applicable fees with a credit card, Eterniam may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
7. Subscription; Automatic Renewal. Your “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Your Payment Method will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic subscription fees to your Payment Method. We will bill the periodic subscription fee to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information).
8. Free Trial. Eterniam may make available a 30-day trial for a subscription to the Service without charge to you (“Free Trial”). You may be required to enter a Payment Method in order to register for a Free Trial. The subscription will automatically commence, and your Payment Method will be charged in accordance with Section 6, at the end of the Free Trial unless you log into your Eterniam account and cancel the subscription before the end of the Free Trial.
9. Permission to Use the Service. Subject to your compliance with these Terms, Eterniam grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to: (i) use the Service to view, use and access Digital Assets and other content made available via the Service; and (ii) download, install and use the Software (in object code format) for its intended purposes, solely in accordance with the manuals or other written instructions provided by Eterniam. This limited license does not include any right to modify, distribute, prepare derivative works of, or grant sublicenses to use the Software or any other portion of the Service. Furthermore, in order to protect our trade secrets and proprietary know-how contained in the Software and the Service, you will not decompile, disassemble, or reverse engineer the Software or any other portion of the Service.
10. Representations and Warranties; Disclaimer
10.1 Digital Assets Representations and Warranties. You are solely responsible for your Digital Assets and the consequences of making available Digital Assets via the Service. By making available Digital Assets via the Service, you represent and warrant that:
a. you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Eterniam, Beneficiaries, and other users of the Service to access and use your Digital Assets as necessary to exercise the licenses granted by you in this Section 10 and in the manner contemplated by the Service and these Terms; and
b. your Digital Assets, and the use of your Digital Assets as contemplated in these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party.
10.2 Digital Assets Disclaimer. We are under no obligation to edit or control Digital Assets that you or other users upload, and will not be in any way responsible or liable for Digital Assets. Eterniam may, however, at any time and without prior notice, screen, remove, edit, or block any Digital Assets that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to Digital Assets from a variety of sources and acknowledge that Digital Assets may be inaccurate, offensive, indecent or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Eterniam with respect to Digital Assets. We expressly disclaim any and all liability in connection with Digital Assets. If notified by a user or content owner that a Digital Asset allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove that Digital Asset, which we reserve the right to do at any time and without notice. For clarity, Eterniam does not permit copyright-infringing activities on the Service.
11. Digital Millennium Copyright Act
11.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:
Two Union Square
601 Union Street, Suite 4200
Seattle, WA 98101
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
11.2 Repeat Infringers. Eterniam will promptly terminate without notice the accounts of users that are determined by Eterniam to be “repeat infringers." A repeat infringer is a user who has been notified of infringing activity more than twice or has had a Digital Asset removed from the Service more than twice.
12. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
12.1 upload Digital Assets in excess of normal storage usage;
12.2 use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
12.3 violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
12.4 upload or distribute any Digital Asset that includes content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
12.5 interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part of the Service except to the extent that such activity is expressly permitted by applicable law;
12.6 interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
12.7 perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
12.8 sell or otherwise transfer the access granted in these Terms or any Materials (as defined in Section 20 below) or any right or ability to view, access, or use any Materials; or
12.9 attempt to do any of the acts described in this Section 12, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 12.
13. Third-Party Services and Linked Websites. Eterniam may provide tools through the Service that enable you to import or export information, including Digital Assets, to or from third party services, including through features that allow you to provide your Facebook login credentials in order for Eterniam to import Digital Assets to the Service. These tools are an optional feature and are not required to access and use the Service. By using these tools, you agree that we may transfer such information to or from the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your information. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
14. Termination of Use; Discontinuation and Modification of the Service.
14.1 Termination of Use. You may terminate the Service at any time by navigating to your account settings and selecting the option to terminate your account. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, Eterniam, in its sole discretion may terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice.
14.2 Discontinuation and Modification of the Service. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
14.3 Removal of Digital Assets. If you choose to terminate your account, Digital Assets uploaded by you will no longer be available to you or your Beneficiaries. It is your responsibility to download any Digital Assets before terminating your account. If Eterniam elects to terminate your account, you will have 30 days to download any Digital Assets that have been uploaded by you or shared with you by other users.
15. Notice of Death. When Eterniam is notified of a Subscriber’s death, Eterniam will confirm this information through public Social Security records. A Beneficiary may also provide a copy of the Subscriber’s death certificate to confirm that Subscriber is deceased. Following confirmation, Eterniam will notify that Subscriber’s Beneficiaries of the availability of Digital Assets that Subscriber has designated for those Beneficiaries. Designated Beneficiaries will be able to access those Digital Assets via the beneficiaries’ Eterniam accounts for two years from the date of Eterniam’s notice. Digital Assets that a Subscriber has marked as “private” will not be shared with any Beneficiary or other person. Subscriber’s heirs will own the copyright in all of Subscriber’s Digital Assets in accordance with the applicable state’s inheritance laws.
16. Feedback. If you provide feedback to Eterniam regarding the Service (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Eterniam to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Eterniam a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose.
17.2 Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the "Additional Terms"), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service, subject to Section 18 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
18. Changes to the Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. Our changed Terms will automatically take effect 60 days after it is made available through the Site. If you do not accept the changed Terms, you may terminate your access to and use of the Service. Your continued use of the Service after the changed Terms have become effective indicates that you have read, understood and agreed to the current version of the Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose.
19. Special Terms Regarding Apple. If you download Software from Apple, Inc.’s App Store, your use of the Software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service. You acknowledge that these Terms are entered into solely between you and Eterniam. These Terms are not intended to provide for usage rules for the Software that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise conflict with, the App Store Terms of Service as of the date that you accept the App Store Terms of Service (which you acknowledge you have had the opportunity to review). You also acknowledge and agree that: (a) if any third party claims that your possession or use of the Software infringes a third party’s intellectual property rights, Apple is not responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim; (b) Apple has no responsibility for addressing any claims relating to the Software, including: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (iv) any claim arising under consumer protection or similar legislation; and (c) Apple and its subsidiaries are intended third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple and its subsidiaries will have the right (and will be deemed to have accepted the right) to enforce these Terms against you.
20. Ownership; Proprietary Rights. The Service is owned and operated by Eterniam. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Eterniam are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of Eterniam or our third-party licensors. Except as expressly authorized by Eterniam, you may not make use of the Materials. Eterniam reserves all rights to the Materials not granted expressly in these Terms.
21. Indemnity. You agree that you will be responsible for your use of the Service, and that you, your heirs, and your beneficiaries agree to defend, indemnify, and hold harmless Eterniam and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the "Eterniam Entities") from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced in these Terms, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; (iv) any disputes or issues between you and any third party; (v) any disputes or issues in connection with the administration of your estate under federal, state, or local law; or (vi) any conflict between the Service and a will, trust, power of attorney, or similar estate planning document. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
22. Disclaimers; No Warranties THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. ETERNIAM SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ETERNIAM DOES NOT WARRANT THAT THE SERVICE OR ANY PART OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF ETERNIAM’S OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
23. Limitation of Liability
IN NO EVENT WILL ETERNIAM BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE ETERNIAM ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT THE AGGREGATE LIABILITY OF THE ETERNIAM ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO ETERNIAM FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 23 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
24. Governing Law. These Terms shall be governed by the laws of the State of Washington without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted under these Terms, you and Eterniam agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for the purpose of litigating all such disputes.
26. Dispute Resolution and Arbitration
26.1 Generally. In the interest of resolving disputes between you and Eterniam in the most expedient and cost effective manner, you and Eterniam agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ETERNIAM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
26.2 Exceptions. Notwithstanding subsection 26.1, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
26.3 Arbitrator. Any arbitration between you and Eterniam will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Eterniam.
26.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Eterniam's address for Notice is: Eterniam, Inc., 601 Union Street, Suite 4200, Seattle, WA 98101. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Eterniam may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Eterniam shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Eterniam shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Eterniam in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
26.5 Fees. In the event that you commence arbitration in accordance with these Terms, Eterniam will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in King County, Washington, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Eterniam for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
26.6 No Class Actions. YOU AND ETERNIAM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Eterniam agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
26.7 Modifications. In the event that Eterniam makes any future change to this arbitration provision (other than a change to Eterniam's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Eterniam's address for Notice, in which case your account with Eterniam shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
26.8 Enforceability. If Subsection 26.6 is found to be unenforceable or if the entirety of this Section 26 is found to be unenforceable, then the entirety of this Section 26 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 24 shall govern any action arising out of or related to these Terms.
28. Contact Information. The Service is offered by Eterniam, Inc., located at 601 Union Street, Suite 4200, Seattle, WA 98101. You may contact us by sending correspondence to that street address or by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to that street address with your electronic mail address and a request for these Terms.