Terms of Service
TERMS OF SERVICE
Effective Date: 2017-02-01
Last Revised Date: 2017-07-27
Please review these Terms of Service ("Terms") carefully, including the binding arbitration clause and class action waiver in section 9.7 below. Your acceptance of these Terms is required in order for you to access and use the Company Services (as defined below). By registering with us, purchasing any goods or services from us, or by using the Company Services in whole or in part (whether as a shopper, browser/viewer, vendor, user, customer, merchant, and/ or contributor of content), you are entering into a legally binding agreement with us. If you do not agree to these Terms, you cannot use the Company Services. We reserve the right at our discretion to make modifications to these Terms periodically. We will notify you of material changes via an email sent to the email address we have on file for you or via other notification mechanisms. Your continued use of and access to the Company Services, or your purchase of any goods or services from us, after such modifications, indicates your acceptance of and agreement to the modified Terms.
- DEFINED TERMS
"Access Information": user name, password, and other log-in information for access to the Company Services or to conduct transactions.
"Company Services": the website features and other products and services made available to you when you visit or shop at https://cerisefashion.com, as such features, products and services may be offered, withdrawn, updated or modified by us in our sole discretion on one or more occasions.
"Content": text, images, graphics, photos, video, audio, and any other content, information or data (including transaction data), created, derived from or accessible via use of the Company Services. The term "your Content" includes Content originating or derived from your use of the Company Services and/or Other Applications.
"Other Applications": online or offline software, products, services, platforms, APIs, e-commerce sites, functionality, hardware, networks and Content not developed or provided by us, including any of the foregoing that is owned or licensed by you or another party, or that is processed, made available, or enabled for use and display, via the Company Services.
"Subject Matter": these Terms, Company Services, Content, Other Applications and any good, item, product or service made available via any of the foregoing.
"We", "us", "our", the "Company" or "Blue Marble Products, LLC": Blue Marble Products, LLC.
"You" or "your": the individual using the Company Services, or clicking "accept" or "agree" or otherwise demonstrating acceptance of the Terms, or purchasing products offered via the Company Services, and thereby becoming bound by these Terms, and the company or other legal entity represented by such individual, and all affiliates thereto.
- ACCESS TO COMPANY SERVICES
2.1 Availability. Subject to your compliance with these Terms, including payment obligations, we will use commercially reasonable efforts to make available the Company Services. You acknowledge that your decision to use the Company Services is not reliant or dependent on the availability of any current or future functionality or features, or on any oral or written public or private comments or representations made by us. You may not use the Company Services if you are barred from doing so under the laws of the United States or other countries including the country in which you are resident or from which you use the Company Services. If you are using the Company Services on behalf of a company, you warrant that you have full power and authority to bind such company to these terms. Company Services are not intended for and should not be used by anyone under the age of eighteen.
2.2 Consent to Emails. You agree and consent to receive email messages from us, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Company Services, including administrative notices and service announcements or changes.
2.3 Reservation of Rights. We retain all right, title and interest in and to the Company Services and our Content, and all associated intellectual property rights. We grant no licensed rights to our patents. The user interface, user experience, icons, presentation layer and elements, reports, layouts, and screen displays of or generated by the Company Services are our copyrightable content, our trade dress and our trademarks and servicemarks. You will not use, reproduce, distribute, or deploy the Company Services, except for your own personal use or your own business operations, and solely in accordance with these Terms.
- USE OF THE COMPANY SERVICES
3.1 Necessary Systems. Access to and ability to effectively use the Company Services is conditioned on your procurement of all necessary system, hardware, software, operating environment, Other Applications, connectivity, and network access. You acknowledge that use of the Company Services requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider, and may impact usage limitations imposed by Other Applications.
3.2 Feedback. You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, reviews, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to the Company Services for our business purposes, including for product, service or solution sales, support and development, without any obligation or payment to you.
3.3 Information. You hereby consent to our collection and use of anonymized data (including meta-data, analytical, diagnostic and technical data, and usage statistics) concerning or arising from your use of the Company Services in order to provide the functionality of and improve the Company Services, for product development and marketing purposes, to protect against spam and malware, and for verifying compliance with the Terms.
3.4 Unauthorized Use. You will not use the Company Services or participate in any activities via the Company Services in a manner that is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction, including intellectual property rights. Your use of the Company Services must be in full compliance with applicable law. You are solely responsible for the accuracy, quality and legality of the Other Applications. You will not use, or enable or permit the use of the Company Services to store or transmit infringing, libelous, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. You will not use or access the Company Services: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.5 Notifications to You. For purposes of service messages and notices about the Company Services to you, we may place a banner notice across site pages to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and these Terms through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services.
3.6 Notifications to Us. If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so. To be effective, notices to us must be sent to email@example.com.
- ACCESS INFORMATION & CONTENT
4.1 Access Information. You are wholly responsible for maintaining the confidentiality of Access Information and wholly liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use access information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security via email sent to firstname.lastname@example.org. We will not be liable for any loss or damage arising from lost or forgotten Access Information (including associated loss of Content), from failure to comply with this section or from unauthorized use of Access Information.
4.2 Responsibility for Content. Your Content is your sole responsibility and the responsibility of the user from which such Content originated. We will have no responsibility or liability for the deletion or failure to store any Content or user data. We reserve the right to mark as "inactive" and archive accounts that are inactive for an extended period of time. It is your sole responsibility to back up your Content and end user data. We may preserve and disclose any Content if required to do so by law or judicial or governmental mandate or as reasonably necessary to protect the rights, property or safety of us, users and/or the public. We may terminate Company Services access in response to a violation or suspected violation of these Terms. You agree to only provide information through the Company Services that you are allowed to provide without violating any obligations you might have towards a third party, including any confidentiality obligations. You agree not to provide any information that you are not allowed to share with others, including by contract or law. Any information you provide will be accessible by other users of the Company Services.
4.3 Use of Content. You will bear all risks associated with the use of any Content, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content. We may refuse or delete any Content, including Content of which we become aware that fails to fulfill the purpose of the Company Services, is in breach of these Terms, is otherwise contrary to law, or is otherwise inappropriate in our discretion. We do not guarantee, and are not responsible for, the accuracy, integrity or quality of any Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content. We will have no obligation or liability to maintain, store, or license Content, protect and maintain Content owners' intellectual property rights, or to enforce these Terms. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of Content or your inability to effectively use Content, your failure to comply with these Terms, or for any act, omission, or conduct of any Company Services user.
4.4 Account Data. While we will endeavor to back up data, we have no responsibility or liability for the deletion or failure to store any Content. You acknowledge and agree that we are under no obligation to compile and return to you your Content, including if you elect to deactivate your account, except as we may otherwise agree in writing.
4.5 License to Content. You hereby grant to us the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, non-exclusive right and license to use, reproduce, distribute, create derivative works of, display and perform your Content solely for the purposes of developing, implementing, maintaining, improving and providing the Company Services.
- OTHER APPLICATIONS
5.1 Responsibility. You are solely responsible for the Other Applications. Under no circumstances will we be liable in any way for Other Applications, including, but not limited to, liability for any errors or omissions in any Other Applications, or for any errors, loss or damage of any kind incurred as a result of the use or unavailability of the Other Applications. You hereby waive and release any claims you may have against us arising or resulting from use, misuse, alteration or loss of Other Applications. If the providers of Other Applications cease to make the Other Applications available for interoperation with the corresponding features of the Company Services and on reasonable terms or otherwise, we may cease providing Company Services or such features, without entitling you to any refund, credit or other compensation.
5.2 Use of Your Content. We will not be responsible for any disclosure, modification or deletion of your Content resulting from (a) any access or use of such Content by Other Applications or (b) enabling Other Applications to interoperate with the Company Services.
5.3 Other Applications Terms. You may be subject to additional terms and conditions that may apply when you use Other Applications, or affiliate or third party content or services.
- ORDERS & PAYMENT
6.0 ORDERS & PAYMENT
6.1 Billing Account. By providing us with a billing account, you represent and warrant that you: (a) are authorized to use the billing account that you provided and that any payment information you provide is true and accurate; and (b) authorize us to charge you using your billing account. You agree to provide current, complete and accurate purchase and account information for all purchases made. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
6.2 Orders. A contract of sale is not formed until we have commenced shipment of any products ordered. Your order is considered an offer to purchase one of the products displayed as part of the Company Services at the displayed price, with our acceptance occurring only upon commencement of product delivery. We may cancel any order at any time prior to the time that the ordered product(s) have been received by a carrier for shipment. Consistent with applicable law, we may refuse service, orders, or sale of products or services to anyone for any or no reason.
6.3 Risk of Loss. Risk of loss and title for any purchased items pass to you upon our delivery to the carrier for shipment.
6.4 Returns. You must notify us of your return in advance via email@example.com. If you were not provided a pre-paid label, you must also provide us with valid tracking number. The Company does not take title to returned items until the item arrives at our or our third party's fulfillment center. At our discretion, a refund may be issued without requiring a return. In this situation, we do not take title to the refunded item.
6.5 Item Descriptions. We do not warrant that product descriptions or other content of any Company Service is accurate, complete, reliable, current, or error-free. If a product offered by us is not as described, your sole remedy is to return it in unused condition for a refund (unless we waive the need to return the item). We may, but are not obligated to, limit the sales of our products or provision of Company Services or Content to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We may limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. If we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
6.6 Pricing. Prices are subject to change without notice. With respect to items sold by us, we cannot confirm the price of an item until you place the order. Some items in our catalog may be mispriced. If the correct price of an item is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
6.7 Taxes. You will bear and be responsible for the payment of all taxes, including all sales, use, value-added, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with these Terms or provision of the Company Services (excluding only taxes based on our net income). If we are required to pay or collect any such taxes or other charges for which you are responsible under this section, the appropriate amount will be invoiced to and paid by you.
- COMPANY SERVICES INTEGRITY
7.1 Prohibited Acts. You are prohibited from breaching or attempting to breach any security features of the Company Services, including, without limitation: (a) accessing content, data, information or materials not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Company Services, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with use of the Company Services by any user, host, or network, including, without limitation, by means of submitting a virus, overloading, flooding, spamming, mail bombing, or crashing; (d) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity; (e) forging any TCP/IP packet header or any part of the header information; (f) accessing or tampering with non-public areas of the Company Services, our computer systems, or the technical delivery systems of us or our providers; (g) publish, post, upload or otherwise transmit any data, material, information or content that contains any viruses, trojan horses, worms, time bombs, corrupted files or programming routines or mechanisms that are intended to damage, interfere with, monitor, intercept or expropriate any systems, data, information or property; (h) accessing or attempting to access the Company Services by any means (automated or otherwise) other than through the currently available, published or enabled interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; or (i) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code or other information used by us in providing the Company Services.
7.2 Illicit Access. You will not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You will not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Company Services, which is for your personal/internal and individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium the Company Services, except through and as otherwise authorized by us, and you will not engage in framing, mirroring, or otherwise reproducing or simulating the appearance or function of the Company Services. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of the Company Services.
- DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY & INDEMNITY
8.1 Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, WE PROVIDE THE COMPANY SERVICES ON AN AS-IS, AS-AVAILABLE BASIS WITH ALL FAULTS, and WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE COMPANY SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the Company Services will meet your requirements, goals or needs, (b) Company Services access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the Company Services will be corrected. We have no responsibility or liability for the deletion of or failure to store your Content or to ensure that your Content is accurate or complete. It is your sole responsibility to back up and maintain the accuracy and completeness of your Content. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability and security of hosting services, internet intermediaries, your internet service provider, and other application or service providers cannot be assured, you accept such inherent security risks associated with your use of the Company Services. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion of implied warranties may not apply to you.
8.2 Exclusion. In no event shall Company, its officers, directors, employees or agents, be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting or arising from or related to the Subject Matter or any (a) errors, mistakes, or inaccuracies of Content, Company Services or Other Applications, (b) damages of any nature whatsoever (including personal injury, property damage or loss, or reliance damages), resulting from your access to and use of, or inability to access and use Company Services, Other Applications, or Content, (c) any unauthorized access to or use of our secure servers and/or any and all personal information and/or financial information stored therein, (d) any termination, interruption or cessation of Company Services, Content or Other Applications, (e) any bugs, viruses, trojan horses, or the like, which may be transmitted to or through Company Services or Other Applications by any third party, and/or (f) any errors or omissions in any Content, Company Services or Other Applications, or for any loss or damage of any kind incurred as a result of your use of Content, Company Services or Other Applications, or any Content, product, item or service posted, emailed, transmitted, or otherwise made available via the Company Services. Liability is so limited and excluded, whether based on warranty, contract, tort, or any other legal theory, and whether or not we are advised of the possibility of such damages. Liability for damages will be so limited and excluded, regardless of the validity or efficacy of any remedy provided herein and even if any remedy fails of its essential purpose. The provisions of this section allocate the risks under these Terms between the parties and each party has relied upon the limitations set forth herein in determining whether to enter into this relationship. The parties have voluntarily agreed to define the parties’ rights, liabilities and obligations respecting the Subject Matter exclusively in contract pursuant to these Terms, and you expressly disclaim that you are owed any duties or are entitled to any remedies not expressly set forth in these Terms. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
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 and you may also have other legal rights that vary from jurisdiction to jurisdiction.
8.3 Indemnification. To the extent permitted under applicable laws, you hereby agree to fully indemnify, defend and hold harmless us, our affiliates, and officers, directors, employees and agents of us and our affiliates, from and against any and all claims, losses, damages, judgments, awards, costs, liabilities, expenses, sanctions, and fees (including our reasonable in-house and external lawyers fees and costs) directly or indirectly caused by or incurred by reason of a third party allegation, lawsuit, claim or proceeding, arising out of or related to (a) your use of Content, Company Services, or Other Applications; (b) breach of these Terms; (c) infringement of intellectual property rights; or (d) your business activities. We may assume the exclusive defense and control of any matter for which you are required to indemnify us at your expense, and you agree to cooperate with our defense of these claims. You will not settle or compromise any such claims without our prior written consent.
8.4 General Release. You further agree that these Terms waive and release any claims that would otherwise be preserved by operation of section 1542 of the California Civil Code, which provides: “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." You understand that you are releasing us from all claims, whether known or unknown to you, and whether or not you suspect that those claims may exist at this time.
- GENERAL PROVISIONS
9.1 Service Discontinuance/Modification. We may from time to time modify or discontinue access to, temporarily or permanently, any part, feature, or functionality of the Company Services. We will not be liable for any such modification, suspension or discontinuance, even if certain features or functions, your settings, and/or any Content you have contributed or have come to rely on, are permanently lost.
9.2 Account Termination. We may terminate your account or access for cause, including without limitation for: (a) violation of these Terms; (b) abuse of our resources or any attempt to gain unauthorized entry to the Company Services; (c) use of the Company Services in a manner inconsistent with its purpose; (d) any authorized user's request for such termination; or (e) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of the Company Services for our own business reasons, including if we elect to cease being in the business of providing it or if the owners of Other Applications make continued operation commercially impracticable or unreasonable. After account termination, you will not attempt to register a new account without our permission.
9.3 Trademarks; Media. You are granted no right, title or license to any third-party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers. All trademarks not owned by us that appear in the Company Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. You shall not purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use our trademarks or servicemarks and/or variations and misspellings thereof.
9.5 California-Based. The Company Services is controlled by us from our offices in California. We make no representation that the Company Services is appropriate for use in other jurisdictions. Your use of or access to the Company Services will not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any other state or jurisdiction other than California.
9.6 Governing Law; Choice of Forum. The Subject Matter and any disputes between us and related to or concerning any of the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the laws of California, without regard to conflicts of laws rules, and to the maximum extent permitted by applicable law, the parties hereby waive the right to a jury trial for any such disputes. The United Nations Convention on Contracts for the International Sale of Goods will not apply and is hereby expressly excluded. Subject to section 9.7, the state and federal courts located in San Francisco County, California, will have exclusive jurisdiction over any disputes between the parties arising out of or related to the Subject Matter, and both parties hereby consent and submit to the jurisdiction of such courts for such disputes and waive any objections to the exercise of such jurisdiction.
Please read this Arbitration Agreement carefully. It is part of your contract with the Company and affects your rights. It contains procedures for mandatory binding arbitration and a class action waiver.
a. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms, the Company Services or the use of any product or service provided by the Company 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. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company.
b. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: ATTN: 1920 Hillhurst Avenue, Unit #V938
Los Angeles, CA 90027. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
c. Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider that offers arbitration as set forth in this section, or if JAMS is not available to arbitrate, the parties shall agree to select an alternative provider (“ADR Provider”). This Agreement and the rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement (“Arbitration Rules”). 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 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or 130% of the settlement offer. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
d. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected pursuant to Section “(c)” 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 agreed by the parties.
e. Time Limits. If you or the Company pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.
f. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, 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 ADR Provider’s rules, and the Agreement. 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 the Company.
g. 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 a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and the Company waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
h. 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 User cannot be arbitrated or litigated jointly or consolidated with those of any other User.
i. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
j. 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 Agreement shall continue in full force and effect.
k. 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.
l. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with the Company.
m. Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
n. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
o. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
p. 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 within San Francisco County, California, for such purpose.
9.8 Limitation. You agree that regardless of any statute of limitations to the contrary, any claim or cause of action arising out of or related to the Subject Matter must be filed within one year after such claim or cause of action arose, or be forever barred. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period established by applicable law.
9.9 Assignment. These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
9.10 Injunctive Relief. You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the Company Services, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
9.11 Miscellaneous. The Terms constitute the entire agreement between you and us and govern your use of the Company Services, superseding any prior agreements, understandings, communications or proposals. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms will remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party.
9.12 Copyright Policy. We respect the intellectual property of others and ask that users of the Company Services do the same. In connection with the Company Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of the Company Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of the Company Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. 512(c)) must be provided to our designated Copyright Agent:
a. your physical or electronic signature;
b. identification of the copyrighted work(s) that you claim to have been infringed;
c. identification of the material on the Company Services that you claim is infringing and that you request us to remove;
d. sufficient information to permit us to locate such material;
e. your address, telephone number, and e-mail address;
f. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
g. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by us in connection with the written notification and allegation of copyright infringement.
4814-8922-5547, v. 2