Effective Date: October 1, 2015
1 OUR INVITATION TO YOU
1.2 Additional Terms.
Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions. In the event of a conflict between the additional terms or other agreement and any provision in these Terms, the additional terms will prevail, but only with respect to the portion of the Services to which the additional terms apply.
These terms include a class action waiver and a waiver of jury trials, and require binding arbitration on an individual basis to resolve disputes. These terms limit the remedies that may be available to you in the event of a dispute.
2 ELIGIBILITY OF USERS
2.1 Eligibility of Users. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms or use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
You represent and warrant that you are at least 13 years of age, provided that if you are under 18 years of age, your use of the Services is subject to parental consent. If you are under age 13, you may not, under any circumstances use the Services. If you are the parent of a child under the age of 18 using the Services, please contact us at email@example.com. It is your responsibility to supervise the activities of children under the age of 18 and to comply with all applicable laws.
3 YOUR ACCOUNT
3.1 Your Account.
To sign up for the Services, you must create an account (an “Account”) by registering for an Account on the Services. We reserve the right in its sole discretion to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof) at any time for any reason. You agree that we will not be liable to you or to any third party for any suspension or termination of your Account or any refusal by us of any use of the Services (or any portion thereof). You must provide accurate and complete information and keep your Account information updated.
3.2 Account Security.
You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You can delete your Account, either directly or through a request made to one of our employees or affiliates. We care about the security of our users. While we work to protect the security of your content and account, we cannot guarantee that unauthorized third parties will not be able to defeat our security measures. Please notify us immediately of any compromise or unauthorized use of your account.
3.3 Closing Your Account.
You may deactivate your Account with us at any time, for any reason (or no reason), and you don’t even have to give us notice. However, if you desire to deactivate your Account you need to take certain specific steps, which are described in our help system.
3.4 Your Demise.
We pledge to protect the privacy of your User Content will continue, even after your death or incapacity. If you wish to enable someone to have access to your User Content or Account after you are no longer able to provide them access, you need to implement a process for providing your Account information to them. We will not provide your Account information, or your User Content, to anyone, even next of kin, unless we determine that we are legally obligated to do so.
The term “Content” includes, without limitation, all information, data, text, photographs, videos, audio clips, written communications , software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services. The term “User Content” includes, without limitation, all Content added, created, uploaded, submitted, distributed, or posted to the Services by users, whether publicly posted or privately transmitted.
4.2 Responsibility for User Content.
User Content is the sole responsibility of the person who originated such User Content. Each user owns its own User Content. You represent that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We are not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire. We have no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. You acknowledge that we have no obligation to pre-screen User Content, although we reserve the right in our sole discretion to pre-screen, refuse, or remove any User Content at any time for any reason.
4.3 Notices and Restrictions.
The Services may contain Content specifically provided by us, our brands, partners or our other users and such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
4.4 Your License.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for other than purposes of using the Services is expressly prohibited without prior written permission from us. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
4.5 OUR LICENSE
4.5.1Â Â Â Â Â In General.
By submitting User Content through the Services, you hereby do and shall grant us a limited worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, modify, truncate, aggregate, reproduce, distribute to authorized third parties, prepare derivative works of, and otherwise fully exploit the User Content in connection with the Services and our (and our successors’ and assigns’) businesses. For clarity, the foregoing license grants to us does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
4.5.2Â Â Â Â Â License to Anonymized Data.
You are part of a large scale and important benchmarking study. We use this data, in anonymous form, to make useful comparisons among various power usage scenarios and to increase the value of the Services and its accuracy for all users. Therefore, you hereby agree that the Services can record, reproduce, transmit and use your User Content for benchmarking and other purposes, as long as the User Content is no longer identifiable to you or a specific device. This right survives the expiration, termination or cessation of your use of the Services.
4.6 Availability of Content.
We do not guarantee that any Content will be made available through the Services. We reserve the right to, but do not have any obligation to, (1) remove or modify any Content in our sole discretion, at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have violated these Terms), or for no reason at all and (2) to remove or block any Content from the Services.
We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities.
4.8 Retention of your Content.
Following termination or deactivation of your account, or if you remove any User Content, we may retain your User Content for a commercially reasonable period of time for research, backup, archival, or audit purposes. Furthermore, we retain the right to use your data as part of the Services so long as such data is anonymized and not traceable to you.
4.9 Content Provided by Other Parties.
The Services may contain User Content provided by other users or third parties. We are not responsible for and do not control such User Content. We have the right, but no obligation to review or monitor such content. We do not approve, endorse or make any representations or warranties with respect to such User Content. You use all such User Content at your own risk.
Some of the Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that we may place such advertising and promotions on the Service or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
4.11 Viruses, etc.
We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Services or to your downloading of any material posted on it, or on any website linked to it.
5.1 License Grant to You.
Subject to your compliance with these Terms, we grant to you a limited, revocable, non-exclusive, non-transferable license, without the right to sublicense, to use the Services solely for your private, personal, non-commercial use
5.2 Restrictions on You.
Except as expressly specified in these Terms, you shall not
- modify, or make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services;
- license, transfer, sell, rent, lease, distribute, assign, host, sublicense or otherwise commercially exploit the Services, in whole or in part;
- frame or utilize framing techniques to enclose any trademark, logo, or other portion of the Services (including images, text, page layout, or form);
- use any metatags or other “hidden text” using our name or trademarks;
- use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such);
- access the Services in order to build a similar or competitive website, product, or service;
- copy, reproduce, distribute, republish, download, display, post or transmit any part of the Services in any form or by any means;
- tamper in any way with the Services or put any computer programs, information or data into the Services that contains any viruses, time bombs, trojan horses, worms, scripts, denial of service attack software or other computer programming routines that may damage, interfere with, intercept or expropriate the Services or any data or content contained within or used by the Services,
- remove or destroy any copyright notices or other proprietary markings contained on or in the Services; or
- make the functionality of the Services available to multiple users through any means. You will comply with any technical restrictions in the Application that allow you to use the Application only in certain ways. Any unauthorized use of the Services terminates the licenses granted by us pursuant to these Terms. We makes no representation that the Services are appropriate for use in locations other than the United States.
5.3 Updates and Upgrades; No Obligation.
We are not obligated to maintain or support the Services, or to provide you with updates, upgrades or services related thereto. You acknowledge that we may from time to time in its sole discretion issue updates or upgrades to the Services. You agree that the terms and conditions of these Terms will apply to all such updates or upgrades.
5.4 U.S. Government Users.
The Services and related documentation are “commercial items” as that term is defined in US government regulations, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in said regulations. If the Services and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in said regulations, the U.S. Government’s rights in the Services and related documentation will be only those specified in these Terms.
5.5 Export Control.
The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any technical data acquired from the Services, or any products utilizing such data, in violation of the United States export laws or regulations or the laws or regulations of any other country.
We reserve the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
Excluding any User Content that you may provide, you acknowledge that (1) the Services are and will remain the sole property of ours and is subject to protection under U.S. and foreign copyright laws and (2) all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and content made available through the Services are owned by us or its licensors or suppliers. Our names, logo, trademarks and the product names associated with the Services belong to us (or our licensors or suppliers, where applicable), and no right or license is granted to use them by implication, estoppel or otherwise. Neither these Terms nor your access to the Services transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in these Terms.
We always appreciate your feedback or other suggestions (“Feeback”) about the Services, however you communicate them to us, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them). You grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true regardless of how you provide the Feedback to us.
6 Rules of Conduct.
6.1 In General.
As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms. You are responsible for all of your activity in connection with the Services. 6.2 Specifically. You shall not (and shall not permit any third party to) either (1) take any action or (2) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty (see our DMCA Copyright Policy below);
- you know is false, misleading, untruthful or inaccurate;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (i.e. spamming);
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party;
- impersonates any person or entity, including any of our employees or representatives; or
- includes anyone’s identification documents or sensitive financial information. You shall not:
- take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure;
- interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
- bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services);
- run any form of auto-responder or “spam” on the Services;
- use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
- harvest or scrape any Content from the Services; or
- otherwise take any action in violation of our guidelines and policies. You shall abide by all applicable local, state, national and international laws and regulations. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to
- satisfy any applicable law, regulation, legal process or governmental request,
- enforce these Terms, including investigation of potential violations hereof,
- detect, prevent, or otherwise address fraud, security or technical issues,
- respond to user support requests, or
- protect the rights, property or safety of us, our users and the public.
7 Third Party Services.
8 App Stores.
8.1 License Grant to You.
Subject to your compliance with these Terms, we grant to you a limited, revocable, non-exclusive, non-transferable license, without the right to sublicense, to (1) download and install the Application on compatible devices that you own and control and run such cop(ies) of the Application and (2) use the other aspects of the Services solely for your private, personal, non-commercial use. Furthermore, with respect to any Application downloaded through the Apple App Store Google Chrome Web Store, Google Play marketplace, or any similar store or marketplace (each, an “App Store” and references to an App Store include the corporate entity and its subsidiaries making such App Store available to you), you agree to comply with all applicable third party terms of the relevant App Store (e.g. Apple App Store’s Usage Rules) (the “Usage Rules”). To the extent these Terms provide for usage rules that are less restrictive than or otherwise in conflict with the Usage Rules, the more restrictive term applies. We and our licensors and suppliers reserve all rights not expressly granted to you in these Terms.
8.2 Use of the Application.
You acknowledge and agree that the availability of the Application is dependent on the App Store from which you received the App. You acknowledge that this Agreement is between you and us and not with the App Store. We, not the App Store, is solely responsible for the App, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the App, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the App, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them. If you are accessing the Services via an Application on a device provided by Apple, Inc. (“Apple”) or an Application obtained through the Apple App Store, the following shall apply:
- You will only use the Application in connection with an Apple device that you own or control;
- You acknowledge and agree that we are responsible for providing any maintenance and support services with respect to the Application and the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify the App Store, and the App Store may refund the purchase price for the Application to you; and to the maximum extent permitted by applicable law, the App Stores will not have any other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility;
- You acknowledge and agree that we, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application or your possession and/or use of that Application, including, but not limited to: (1) product liability claims; (2) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation;
- You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, we, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and us acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement (e.g., the App Store’s terms and policies and the Usage Rules) which may affect or be affected by such use;
- Both you and we acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof; and
- We are solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed.
We use a third-party payment processor (the “Payment Processor”) to allow you to pay for products purchased through the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. By choosing to purchase goods through the Services, you agree to pay through the Payment Processor, all charges at the prices then in effect for your purchase in accordance with the applicable payment terms and you authorize us, via the applicable Payment Processor, to charge your chosen payment provider (“Payment Method”). Such charges for your purchase may include shipping fees and state and local sales tax, the amount of which varies due to factors including the type of item purchased and the shipping destination. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment. You acknowledge and agree that (1) your purchases through the Services are transactions between you and the brand of such purchases, and not with us or any of our affiliates; and (2) we are not a party to your payment transaction for such purchases and we are not a buyer or a seller in connection with such transactions.
9.2 Payment Method.
The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, via the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your applicable purchase upon demand.
9.3 Current Information Required.
You must provide current, complete and accurate information for your payment method. You must promptly update all information to keep your payment method current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and you must promptly notify us if your payment method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password.
10 Term; Termination.
Subject to this Section, these Terms will remain in full force and effect while you use the Services. We may terminate your Account or your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, which may involve deletion of your User Content associated with your Account from our live databases. If you wish to terminate your Account, you may do so by following the instructions on the Services. We have no liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
11 WARRANTY DISCLAIMER; LIMITATIONS; INDEMNIFICATIONS
11.1 Your Release of Us.
You hereby forever discharge and release us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to:
- the Services;
- any inaccurate, incomplete, unreliable, illegal or infringing Content posted on the Services, whether caused by us or any user of the Services, or by any of the equipment or programming associated with or utilized in the Services;
- The conduct, whether online or offline, of any user;
- any injury, loss or damage caused by another user or User Content posted on the Services, whether online or offline; and
- any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, the Services’ users’ communications. 11.2 California Residents. If You Are a California Resident, You Hereby Waive California Civil Code Section 1542 in Connection with the Foregoing, Which States: “A General Release Does Not Extend to Claims Which the Creditor Does Not Know or Suspect to Exist in His or Her Favor at the Time of Executing the Release, Which If Known by Him or Her must Have Materially Affected His or Her Settlement with the Debtor.” 11.3 Limitation of Warranties. You expressly acknowledge and agree that, to the maximum extent permitted by applicable law, the services and content are provided “as is”, “as available”, with all faults and without warranty of any kind, statutory, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We, and our directors, employees, agents, suppliers, licensors, partners and content providers do not warrant that:
- the services will be secure or available at any particular time or location;
- any defects or errors will be corrected;
- any content or software available at or through the services is free of viruses or other harmful components; or
- the results of using the services will meet your requirements. Your use of the services is solely at your own risk. If applicable law requires any warranties with respect to the site or services, all such warranties are limited in duration to ninety (90) days from the date of first use. No oral or written information or advice given by us or our authorized representatives will create a warranty. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. 11.4 Indemnification. You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to:
- your use of, or inability to use, the Services;
- your violation of these Terms;
- your violation of applicable laws or regulations;
- your User Content;
- your violation of any rights of another party, including any users; or
- your interaction with any other user. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. 11.5 Limitation of Liability. In no event shall we, nor our directors, employees, agents, partners, suppliers, licensors or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the services
- for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, compensatory or consequential damages of any kind whatsoever, substitute goods or services (however arising),
- for any action taken in connection with an investigation by us or law enforcement authorities regarding your or any other party’s use of the service,
- for any action taken in connection with copyright or other intellectual property owners,
- for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or
- for any direct damages in excess of (in the aggregate) of the lesser of (a) the amount paid for the applicable purchase giving rise to the liability or (b) $500.00 and the existence of more than one claim will not enlarge this limit. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. The limitations of damages set forth above are fundamental elements of the basis of the bargain between us and you. 11.6 Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with us and affects your rights. It contains procedures for Mandatory Binding Arbitration and a Class Action Waiver.
- Contact Us First. If a dispute arises between you and us, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that you will notify us about any dispute you have with us regarding the Services by emailing:firstname.lastname@example.org.
- Applicability of Arbitration Agreement. All claims and disputes in connection with these Terms or the use of any product or service provided by us that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and us, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under these Terms.
- Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this Section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with these Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
- Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and us, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and these Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and us in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and we waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in San Francisco, California.
- Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with us.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in San Francisco, California for such purpose. 11.7 Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. 11.8 Injunctions. You agree that in the event you incur any damages, losses or injuries that arise out of our acts or omissions, the damages, if any, caused to you are not irreparable or sufficient to entitle you to an injunction preventing any exploitation of the services or any part thereof, and you will have no rights to enjoin or restrain the development, production, distribution, advertising, exhibition or exploitation of any part of the services or content. 12 Changes These Terms are subject to occasional revision. We will notify you of any changes to our Terms by posting the new Terms here www.wexustech.com/termsofservice. After we make the change and we will change the “Effective Date” above. If we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on the Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes. These changes will be effective immediately for new users of our Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes. 13 Miscellaneous. 13.1 Entire Agreement and Severability. These Terms are the entire agreement between you and us with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. 13.2 Force Majeure. We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. 13.3 Assignment. These Terms are personal to you, and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent. These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. 13.4 Relationship. Your relationship to us is that of an independent contractor and no agency, partnership, joint venture, or employment relationship is created as a result of these Terms and neither party has any authority of any kind to bind the other in any respect. We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding:
- which users gain access to the Services;
- what Content you access via the Services; or
- how you may interpret or use the Content.
13.5 Electronic Communication.
The communications between you and us use electronic means, whether you use the Services or send us emails, or whether we post notices on the Services or communicates with you via email. For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights. Electronic notices should be sent to email@example.com.
13.6 No Waiver.
Our failure to enforce any part of these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
13.7 Headings; Construction.
The section and paragraph headings in these Terms are for convenience only and shall not affect their interpretation. The word “including” means “including without limitation.”
13.8 Consumer Complaints.
In accordance with California Civil Code, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them
13.9 Copyright/Trademark Information.
Copyright Â© 2015 Wexus Technologies, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.