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BY ACCESSING OR USING ANY PART OF THE PLATFORM AND/OR SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO BE BOUND BY THESE TERMS, WHICH CONTAIN AN ARBITRATION AGREEMENT, A WAIVER OF CLASS-ACTION RIGHTS, AND LIABILITY LIMITATIONS. IF YOU DO NOT AGREE TO BE SO BOUND, YOU MAY NOT ACCESS OR USE THE PLATFORM OR ANY SERVICES.
If you have any questions about these Terms, please contact us by email at email@example.com.
1.1 Eligibility. To use the Platform you must be, and represent and warrant that you are, of legal age (within the applicable jurisdiction) and competence. If you are using the Platform on behalf of an entity or organization, “you” means both you and the entity or organization (i.e., you are an advertising agency using the Platform on behalf of a client, “you” means both the agency and client). By using the Services on behalf of any entity or organization, you are representing and warranting to us that you are an authorized representative of that entity or organization, you are of legal age and competence to agree to these Terms on behalf of that entity or organization, and that your access of the Services or acceptance of these Terms constitutes such entity’s or organization’s agreement to these Terms. You represent and warrant that your agreement to and compliance with these Terms does not and will not breach or conflict with any other agreement or arrangement you have with someone else or otherwise violate the law. If you have previously been prohibited from accessing the Services, you are not permitted to access the Services.
1.2 Permission to Use Services. Company grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Platform, subject to these Terms and during the Term, and solely for your lawful distribution of your marketing messages to consumers.
1.3 Advertising Materials. You are solely responsible for all advertising content and marketing communications that you may provide or generate through your use of the Platform, including, but not limited to the following: (a) your data and information that you submit, upload, publish, or otherwise make available to Company through the Services; and (b) products and services advertised in the Advertising Materials, and your other products and services (collectively referred to as “Advertising Materials”). You will be responsible for the accuracy, quality, and legality of your Advertising Materials and the means by which you acquired the same. You agree that your use of Platform and your use and disclosure of Advertising Materials will comply with all applicable laws, rules and regulations, including, but not limited to, CAN-SPAM, the Telephone Consumer Protection Act, DAA Self-Regulatory Principles for Online Behavioral Advertising (if applicable), including all privacy statement and notices and consent requirements (collectively, the “Laws”).
1.6 Usage Restrictions. You agree to use the Services only as permitted in these Terms and in compliance with all applicable Laws. You will not (a) make any Services available to, or use any Services for the benefit of, anyone other than you, for compensation or otherwise, (b) use a Service to store or send infringing, libelous or otherwise unlawful, harassing, abusive, tortious, threatening, invasive of another’s privacy, defamatory, false, intentionally misleading, trade libelous, pornographic, sexually explicit, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual, vulgar, obscene or otherwise objectionable material, promotes illegal activities or contributes to illegal materials, or is otherwise objectionable or illegal in any way; (c) would cause Company to violate any applicable Laws; (d) constitutes unauthorized advertising, promotional materials, bulk mail, junk mail, spam, chain letters, pyramid scheme or any other form of unauthorized messages, whether commercial or otherwise; (e) use Services to store or send material, or otherwise in violation of third-party privacy rights or other rights or any obligations or restrictions imposed by any third party, (f) transmit any virus, worm, spyware, Trojan Horse or other malicious code (“Malicious Code”) to the Services, (g) interfere with the integrity or performance of any Services or any networks or computer systems used to provide the Services, or any other Company customer’s use of the Services, (h) attempt to gain unauthorized access to any Services or networks or computer systems used to provide the Services, (i) modify, reproduce, perform, display, republish, post, transmit, participate in transfer or sale of, translate, copy or create derivative works of, or in any other way exploit or utilize the Platform, or Service, or any part, feature, function or user interface thereof, except as expressly permitted herein, (j) access any Services in order to build a competitive product or service, (k) decompile, disassemble, reverse engineer or reduce to human-perceivable form any Services (to the extent such restriction is not prohibited by Law), (l) attempt to remove, modify or obscure any proprietary notices on the Services, (m) have any right to receive the code for the Services, or (n) harvest or collect information or data regarding other users of the Services except that you may access your own customer list only. You represent and warrant that the use of your Advertising Materials do and your use of the Services do not violate the usage restrictions set forth in this Section 1.6.
1.7 Prohibited Data. You agree that you will not in any way enter or introduce (or request to be entered or introduced) into the Platform any of the following types of data: financial account numbers, social security numbers, tax ID numbers, passport numbers, any government identification numbers of any kind, information regarding individuals under thirteen (13) years of age or specifically sensitive regulated data (e.g. unmasked financial or healthcare data) (collectively, the “Prohibited Data”). You acknowledge and agree that we will have no heightened liability to you or any third-party and will not be required to indemnify you for any heightened damages or claims related to Prohibited Data.
2. ACCOUNT REGISTRATION; ACCOUNT USE.
2.1 Account Registration. To use any Services, you must provide us with complete and accurate information. You must promptly update such information to keep it complete and accurate. You are entirely responsible for maintaining the confidentiality of your password and account. You are entirely responsible for any and all activities that occur under your account. You may not use anyone else’s account at any time.
2.2 Security of Your Account. You agree to notify Company immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Company or a third party due to someone else using your account.
2.3 Payment. We offer a subscription service (each, a “Subscription”) for which we provide additional information regarding our subscription plan (including term, delivery frequency, and pricing) when you register for an account.
2.4 SUBSCRIPTIONS AUTOMATICALLY RENEW. YOU ACKNOWLEDGE AND AGREE THAT EACH SUBSCRIPTION AUTOMATICALLY RENEWS ON A MONTH TO MONTH BASIS AFTER THE INITIAL NINETY (90) DAY TERM UNLESS YOU CANCEL IT OR WE SUSPEND OR TERMINATE IT IN ACCORDANCE WITH THESE TERMS.
2.5 No Obligation to Retain a Record of Your Account. Company has no obligation to retain a record of your account or any data or information that you may have stored for your convenience by means of your account or the Services.
3. INTELLECTUAL PROPERTY; THIRD-PARTY CONTENT AND SERVICES.
3.1 Intellectual Property Rights. The Services (including all customer lists collected via the Services), content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, including the mobile device applications, and all other elements of the Services (“Content”), the trademarks, service marks and logos contained therein (“Marks”), the design of the Platform and/or Services (“Platform Design”), and all software and other technology used to provide the Platform and/or Services (“Technology”), are owned by or licensed to Company and/or its affiliates. Content is provided to you “as is” for your information and personal use only and may not be used, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever. We reserve all rights not expressly granted in and to the Platform, Content, Marks, Platform Design, and Technology. Using the Platform and/or Services does not give you any ownership of or right in or to any Content, Marks, Platform Design or Technology.
3.2 Third-party Content. The Platform may contain information and content provided by third parties. We have no obligation to monitor, we do not endorse, and we are not liable for any third-party content. In addition, the Platform may contain links to third-party websites. Company is not responsible for the content on any linked site or any link contained in a linked site. We do not endorse or accept any responsibility for the content on such third-party sites.
3.4 Mobile Device. To use the Application you must have an appropriate desktop or mobile device that is compatible with the Application. Company does not warrant that the Application will be compatible with your mobile device. You are responsible for any mobile charges that you may incur for using the Services, including text-messaging, roaming charges, and data charges. If you are unsure about the charges that will apply, please contact your mobile service provider before using the Services.
3.5 License by You to Use Feedback. You grant to Company and its affiliates a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, transferable, sublicensable license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the Services. Company will not be obligated to credit you for such feedback or hold any such feedback in confidence.
3.6 App Stores. You acknowledge and agree that the availability of the Services may be dependent on the third party from which you downloaded the Application, e.g., Google Play or Apple App Store (each, an “App Store”). You acknowledge that this agreement is between you and Company and not with the App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the Services from it. You agree to comply with, and your license to use the Services is conditioned upon your compliance with, all applicable terms and conditions of the applicable App Store.
3.7 Apple Additional Terms and Conditions.
a. The following additional terms and conditions apply to you if you are using the Application from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 3.7, the more restrictive or conflicting terms and conditions in this Section 3.7 apply, but solely with respect to the Application from Apple App Store:
b. Acknowledgement: Company and you acknowledge that these Terms are concluded between Company and you only, and not with Apple, and you, not Apple, are solely responsible for the licensed Application and the content thereof. To the extent these Terms provide for usage rules for the Application that are less restrictive than the usage rules set forth for the Application, or otherwise is in conflict with, the Apple App Store Terms of Service, the more restrictive or conflicting Apple term applies.
1. Scope of License: The license granted to you for the licensed Application is limited to a nontransferable license to use the licensed Application on any Apple-branded Products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that such licensed Application may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing.
2. Maintenance and Support: Company is solely responsible for providing any maintenance and support services with respect to the licensed Application, as specified in the Terms, or as required under applicable law. Company and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the licensed Application.
*Warranty: Company is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the licensed Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the licensed Application to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Company’s sole responsibility.
1. Disclaimer: Company and you acknowledge that Company, not Apple, is responsible for addressing any claims of yours or any third party relating to the licensed Application or your possession and/or use of that licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with your licensed Application’s use of the HealthKit and HomeKit frameworks. These Terms do not limit Company’s liability to you beyond what is permitted by applicable law.
2. Intellectual Property Rights: Company and you acknowledge that, in the event of any third party claim that the licensed Application or your possession and use of that licensed Application infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
3. Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Developer Name and Address: Company’s contact information for any end-user questions, complaints or claims with respect to the Application is: MobileNexus Corporation, Purdue Technology Center, 9800 Connecticut Drive, Crown Point, IN 46307.
* Third-Party Terms of Agreement: You must comply with applicable third-party terms of agreement when using the Application.
1. Third-Party Beneficiary: Company and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
4. DCMA COPYRIGHT INFRINGEMENT TAKEDOWN POLICY
4.1 Infringement Notification. Company respects the rights of others and we expect users of our Site and Services to do the same. These Terms prohibit the infringement of the copyrights of others, and it is also our policy that we may remove, suspend, terminate access, or take other appropriate action against repeat offenders. We may also remove content that in our sole discretion appears to infringe the intellectual property rights of others.
4.2 How to File an Infringement Notification. If you have evidence, know, or have a good faith belief that content residing on or accessible through our Site or content deployed by us infringes a copyright which you own or for which you are a designated agent, please send a notice of infringement by email or postal mail to Company’s designated Copyright Agent:
Attention: Copyright Agent–
Address: MobileNexus Corporation
Purdue Technology Center 9800 Connecticut Drive
Crown Point, IN 46307
Email Address: firstname.lastname@example.org
Send such notice with the information that sets forth the items specified below:
* Identify the copyrighted work claimed to have been infringed. If multiple copyrighted works are covered by a single notification, provide a representative list of such works.
* Identify the material that is claimed to be infringing or to be the subject of infringing activity. Include information reasonably sufficient to permit Company to locate the material. Please provide a URL and/or screenshots for each item. Include the specific asset(s) or page(s) that you claim to be infringing. Say “entire work” ONLY if all assets/pages in a collection/document are infringing.
* Include details of your claim to the material, or your relationship to the material’s copyright holder.
* Provide your full name, address, and telephone number should we need to clarify your claim.
* Provide a working email address where we can contact you to confirm your claim. If true, include the following statement: “I have a good faith belief that use of the copyrighted materials described above as the allegedly infringing web pages or content is not authorized by the copyright owner, its agent, or the law.”
* If true, include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the copyright owner to make this complaint.”
* Sign the document, physically or electronically.
ANY NOTICE THAT DOES NOT COMPLY WITH THE REQUIREMENTS OF TITLE 17, UNITED STATES CODE, SECTION 512(c)(3) WILL NOT RECEIVE A RESPONSE. NOTHING IN THIS POLICY IS INTENDED TO EXPAND OR SUPPLEMENT THE LEGAL RIGHTS, PROCEDURES AND REMEDIES AUTHORIZED AND GRANTED UNDER THE DMCA. Please note that you may be liable for damages, including but not limited to costs and attorneys’ fees, under the DMCA if you knowingly materially misrepresent: (a) that material on the Site infringes upon your copyright; or (b) that material on the Site was removed or disabled by mistake or misidentification. If a user is found to be an infringer of the copyright rights of others, Company may terminate access to the user’s account.
5. WARRANTIES; DISCLAIMER.
5.1 Your Warranties. You warrant that (a) if you are an entity or organization, you are a duly formed entity (e.g., corporation or limited liability company) or organization in good standing under the laws of the state of your incorporation or organization; (b) you are qualified to transact business in all states where the ownership of your properties or nature of your operations requires such qualification; and (c) you will comply with all applicable Laws in your use of the Services.
5.2 DISCLAIMERS. THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND COMPANY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY DOES NOT REPRESENT OR WARRANT THAT (A) THE SERVICES WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE, ACCURATE, COMPLETE OR COMPLETELY SECURE, OR ANY ADVERTISING MATERIALS WILL BE DELIVERED IN A TIMELY MANNER, (B) MALICIOUS CODE WILL NOT BE TRANSMITTED TO YOU IN YOUR USE OF THE SERVICES, (C) ALL DEFECTS IN THE SERVICES WILL BE CORRECTED, (D) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) YOU WILL INCREASE SALES OR REVENUE OR ACHIEVE ANY PARTICULAR RESULT, OR (F) NOTIFICATIONS OR E-MAILS OR SMS TEXT MESSAGES SENT FROM OR ON BEHALF OF COMPANY ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS OR OTHER HARMFUL COMPONENTS.ANY USE OR RELIANCE UPON THE SERVICES AND/OR ANY ADVERTISING MATERIALS BY YOU OR ANY CUSTOMER SHALL BE AT YOUR OWN RISK. COMPANY WILL NOT BE LIABLE IN ANY WAY RELATED TO ANY ADVERTISING MATERIALS, YOUR CONTENT, YOUR WEBSITE, YOUR PRODUCTS OR SERVICES, OR THIRDPARTY CONTENT, DATA OR APPLICATION. COMPANY DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
5.3 YOUR RIGHTS MAY VARY. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR IN OTHER JURISDICTIONS.
5.4 NEW JERSEY RESIDENTS. TO NEW JERSEY RESIDENTS, THE PROVISIONS ABOVE ARE INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY THE LAW OF THE STATE OF NEW JERSEY ONLY.
6.1 Indemnification by You. You will defend Company and its affiliates, and their respective directors, officers, employees, agents, attorneys, contractors, successors and assigns (“Company Indemnitees”) for any and all fines, penalties, loss, damages, liabilities, expenses (including attorney’s fees), from any and all claims, demands, suits and proceedings made or brought against Company Indemnitees by a third party (including but not limited to a governmental entity) (each a “Claim”) based on a potential or actual allegation that:(a) the Advertising Materials or unauthorized use of Content violates, infringes or misappropriates such third party’s intellectual property, privacy, personality or other rights, or violates applicable law, (b) your website or product or service, (c) your use or misuse of the Platform or Services or any other party’s access and use of the Services with your unique username and/or password results in a Claim, or (d) facts that, if true, would constitute (i) a breach of these Terms by you, or (ii) other unlawful acts or omissions by you, and will indemnify and hold Company Indemnitees harmless from and against all damages, attorney fees and costs finally awarded against Company as a result of, or for any amounts paid or payable by Company incurred in connection with a Claim. You will undertake such defense upon written notice by Company and if you do not do so within ten (10) days of such notice, Company may undertake such defense at your expense. You may not settle or otherwise compromise any Claim Against Company without Company’s prior written approval.
7. LIMITATION OF LIABILITY AND CLAIMS.
7.1 LIMITATION OF LIABILITY. IN NO EVENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WILL COMPANY AND ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES (COLLECTIVELY “COMPANY” FOR PURPOSES OF THIS SECTION) BE LIABLE FOR ANY RELIANCE BY YOU OR ANY CUSTOMER ON ANY INFORMATION OBTAINED FROM THE PLATFORM, SERVICES, YOUR CONTENT OR ADVERTISING MATERIALS, YOUR PRODUCTS AND/OR SERVICES OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR NOTIFICATIONS OR E-MAIL OR TEXT MESSAGES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM COMMUNICATIONS FAILURE, OR ANY LOST INCOME, LOST DATA, LOST OPPORTUNITY OR LOST PROFITS OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER FOR TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER OR NOT FORESEEABLE AND HOWEVER RISING, AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER FOR TORT (INCLUDING NEGLIGENCE), CONTRACT, BREACH OF WARRANTY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNT YOU PAID TO COMPANY TO WHICH THE CLAIM RELATES OR, IF NO FEES HAVE BEEN PAID, $100. THE LIMITATIONS HEREIN WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS PROVISION IS NOT INTENDED TO EXCLUDE LIABILITY THAT WE MAY NOT EXCLUDE UNDER APPLICABLE LAW.
7.2 LIMITATION ON TIME TO FILE CLAIMS. YOU MUST FILE ANY CLAIM ARISING FROM OR RELATED TO THESE TERMS WITHIN ONE (1) YEAR AFTER THE CLAIM AROSE, OR THE CLAIM WILL BE FORFEITED AND FOREVER BARRED.
7.3 YOUR RIGHTS MAY VARY. BECAUSE SOME STATES OR JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR LIMITATIONS ON OR EXCLUSIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU DEPENDING ON YOUR STATE OR NATION OF RESIDENCE.
8. TERMINATION; SURVIVAL.
8.1 Term. These Terms are effective unless and until terminated by you or us. We may, in our sole and absolute discretion and without any liability, modify, suspend or discontinue any aspect of the Platform, temporarily or permanently, at any time and without prior notice.
8.2 CANCELLATION POLICY. YOU MAY CANCEL YOUR SERVICES AT ANY TIME WITH 30 DAYS ADVANCE WRITTEN NOTICE, SUBJECT TO THESE TERMS. IN ORDER TO CANCEL, YOU MUST FOLLOW THE INSTRUCTIONS GIVEN IN THE SERVICES. INSTRUCTIONS FOR CANCELLING SERVICES MAY BE OBTAINED BY EMAIL REQUEST TO email@example.com
8.3 Modification and Termination of Platform and Services. We may modify or terminate the Platform or the Services, your access to the Services, in part or as a whole, at any time, for any or no reason, and without notice or liability to you. You acknowledge that Company may from time to time issue upgraded versions of the Services, and may automatically electronically upgrade the version of the Services that you are using on your mobile device or otherwise. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. You agree that Company will not be liable to you for any such modifications.
8.4 Suspension or Termination. We may deny you access to all or part of the Platform at any time for any reason (including if you violate these Terms, as determined in our sole and absolute discretion) or no reason at all.
8.5 Effect of Termination. If you terminate your account, you will remain liable under these Terms for any outstanding fees accrued prior to termination. Such fees shall be due and payable within five (5) days from the date of termination. If we terminate your right to access the Platform, these Terms will terminate and all rights you have to access the Platform will immediately terminate. The following provisions will survive termination: 1.4 through 1.5, 1.9, 2.2, 2.3, 3.1, 4 through 6, 7.5, 8 and 9.
You and Company agree that any claim or controversy that arises between us relating in any way to any breach, enforcement, or termination of the Terms or your use of or access to the Platform or Service (each a “Covered Matter” and collectively, “Covered Matters”), will be resolved in accordance with the provisions set forth in this Section 9.
1. Informal Resolution. If you have any dispute with Company, you and Company agree that before taking any formal action, you will contact us at firstname.lastname@example.org provide a brief, written description of the dispute and your contact information (including the email address associated with your account, if your dispute relates to an account), and allow sixty (60) days to pass, during which Company will attempt to reach an amicable resolution of any issue with you.
2. Applicable Law. You and Company agree that United States federal law including the Federal Arbitration Act, and (to the extent not inconsistent with or pre-empted by federal law) the laws of the State of Indiana, USA, without regard to conflict of laws principles, will govern all Covered Matters. Such body of law will apply regardless of your residence or the location of where you use the Company Services.
3. Agreement to Arbitrate Disputes. You and Company agree that these Terms and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act applies in all cases and governs the interpretation and enforcement of the arbitration rules and arbitration proceedings. Any Covered Matter must be asserted individually in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules (including the Supplementary Procedures for Consumer-Related Disputes, if applicable). You and Company further agree that:
1. The arbitrator will utilize desk, phone, or video conference proceedings where appropriate and permitted to mitigate costs of travel.
2. The arbitrator will not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals.
3. The arbitrator, and not any federal, international, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of these Terms, including any claim that all or any part of these Terms is void or voidable or a particular claim is subject to arbitration.
4. The Arbitrator’s Award. You and Company agree that for matters where the relief sought is over $5,000, the arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. You and Company agree that the arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in and enforced by any court of competent jurisdiction. YOU AND COMPANY AGREE THAT THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
5. Exceptions To Our Agreement To Arbitrate Disputes. There are only two exceptions to this agreement to arbitrate:
1. First, if either party reasonably believes that the other party has in any manner violated or threatened to infringe the intellectual property rights of the other party, the party whose rights have been violated may seek injunctive or other appropriate interim relief in any court of competent jurisdiction.
2. Second, each party will retain the right to seek relief in a small claims court within the United States for disputes or claims brought on an individual basis within the scope of the jurisdiction of such courts.
6. Who Bears the Costs of Arbitration. You and Company agree that payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this agreement to arbitrate. If the value of the relief sought is $5,000 or less, at your written request, Company will reimburse you for the filing, administration, and arbitrator fees associated with the arbitration following the earlier of the arbitrator’s decision or settlement, provided that you make your request no more than thirty (30) days following the earlier of such decision or settlement. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or without merit, you agree that Company is relieved of its obligation to reimburse you for any fees associated with the arbitration.
7. Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in the Terms to the contrary, you and Company agree that if Company makes any amendment to the agreement to arbitrate under this Section in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Company prior to the effective date of the amendment. However, the amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between you and Company. If you do not agree to these amended terms, you may close your account within thirty (30) days of the posting or notification of such amended terms and you will not be bound by the amended terms. 8. Judicial Forum for Legal Disputes. Unless you and Company agree otherwise and except as described in Section 9(5)(b) (Small Claims Court), in the event that the agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the agreement to arbitrate, or as a result of a decision by the arbitrator or a court order, or because you are an international User to which this agreement to arbitrate does not apply, you agree (except as otherwise provided by law) that any claim or dispute that has arisen or may arise between You and Company must be resolved exclusively by a state or federal court located in Lake County, Indiana. You and Company agree to submit to the exclusive personal jurisdiction of the courts located within Lake County, Indiana for the purpose of litigating all such claims or disputes.
10. Arbitration Opt-Out Procedure. In order to opt-out, you must email your name, address (including your street address, city, state, and zip code), email address(es) associated with your account(s) to which the opt-out applies, and an unaltered digital image of your valid driver’s license to: email@example.com. This procedure is the only way you can opt out of the agreement to arbitrate in this Section 9. If you opt out of the agreement to arbitrate, all other parts of the Terms and this Section 9 will continue to apply to you. Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with Company.
11. YOU WAIVE CERTAIN RIGHTS. BY AGREEING TO THE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE (i) TO A COURT TRIAL (OTHER THAN SMALL CLAIMS COURT AS PROVIDED ABOVE), (ii) TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST US AND/OR RELATED THIRD PARTIES, AND (iii) TO A TRIAL BY JURY EVEN IF ANY ARBITRATION IS NOT REQUIRED UNDER THE TERMS.
10. GENERAL TERMS.
10.1 Force Majeure. Under no circumstances shall Company or its licensor or supplier be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
10.2 No Waiver; Severability. No waiver of any term of these Terms will be binding unless in writing, no waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and the failure of Company to exercise or enforce any right or remedy in these Terms does not waive that right or remedy. If an arbitrator or a court of competent jurisdiction finds any provision of these Terms to be invalid, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.
10.3 Miscellaneous. These Terms (and all policies, terms and conditions referenced herein) constitute the entire agreement between you and Company and govern your use of the Platform and Services provided by Company and supersede any prior agreements between you and Company on the subject matter. You also may be subject to additional terms that may apply when you use certain Company services or third-party content, links or websites. These Terms, and any rights or licenses granted hereunder, may not be assigned or delegated by you. These Terms, and any rights or licenses granted hereunder, may be assigned or delegated by Company without restriction. These Terms bind and inure to the benefit of each party and the party’s successors and permitted assigns. These Terms may not be modified by an oral statement by a representative of Company. A party’s failure or delay in exercising any right, power or privilege under these Terms will not waive its rights to exercise such right, power, or privilege in the future, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise of such right, power, or privilege, or the exercise of any other right, power, or privilege under these Terms. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree to comply with all applicable laws in your use of the Platform and Services. You agree that any agreements made by and between you and us in electronic form are as legally binding as if made in physical written form. These Terms will not be construed against the drafter. “Include(s)” or “including” means, respectively, “include(s), without limitation,” or “including, without limitation,”, unless expressly stated otherwise. If you are using the Platform or Services for or on behalf of the U.S. or any other government, your license rights do not exceed those granted to non-government consumers.
10.4 Use Outside the United States of America. The Platform is controlled and offered by Company from the United States of America. Company makes no representations that the Platform is appropriate for use in other locations. Those who access or use the Platform from other locations do so at their own risk and are responsible for compliance with local law. You consent to the processing in the United States of America of information you provide to us.
10.5 Notices and Electronic Communications. You hereby consent to receiving and transacting with us by electronic means. We may deliver notice to you by e-mail, posting a notice on the Platform or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following email address: firstname.lastname@example.org
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