READ THESE TERMS CAREFULLY BEFORE BROWSING THE APPLICATIONS. USING THE APPLICATIONS INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE THE APPLICATIONS IF YOU DO NOT ACCEPT THESE TERMS. NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
To the extent that Your use of the Services is governed by a Master Services Agreement, the Master Services Agreement shall control in the event of conflict with these Terms.
We may choose to modify, suspend, terminate or discontinue the Applications, Materials or Services at any time and without notifying You. If You object to any modifications, Your sole recourse shall be to cease using the Applications. Continued use of the Applications indicates that You acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly designated legal notices or terms located on particular pages of the Applications. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
By using the Applications, You promise that You are at least 13 years of age. If You are not yet 18 years old, You must have the permission of an adult to use the Applications and agree to its Terms, and that adult must be a parent or legal guardian who is willing be responsible for Your use of the Applications. Unfortunately, if You breach any of these Terms will terminate automatically and You must immediately destroy any downloaded or printed Materials (and any copies thereof).
PASSWORD RESTRICTED AREAS OF THE APPLICATION
If the Applications allow for accounts, once You submit the required registration information, We alone will determine whether or not to approve Your proposed account. For so long as You use the account, You agree to provide true, accurate, current, and complete information which can be accomplished by logging into Your account and making relevant changes directly or contacting Us using the below contact information and We can make the changes for You. And, if You forget Your password – no worries as We will happily send a password update to Your provided email address. You are responsible for complying with these Terms when You access the Applications, whether directly or through any account that You may setup through or on the Applications. It is Your job to obtain and maintain all equipment and services needed for access to and use of the Applications as well as paying related charges. It is also Your responsibility to maintain the confidentiality of Your password(s), including any password of a third-party site that We may allow You to use to access the Applications. Should You believe Your password or security for the Applications has been breached in any way, You must immediately notify Us.
You agree to pay all applicable fees related to Your use of the Applications and Our Services, if any. We may suspend or terminate Your account and/or access to Our Services and the Applications if Your payment is late and/or Your offered payment method (e.g., credit card or PayPal account) cannot be processed. By providing a payment method, You expressly authorize Us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on Your particular membership and utilized services. We understand that You might cancel Your account, but please know that We will not provide any refund(s) and You will be responsible for paying any balance due on the account. To make things less complicated, You agree that We may charge any unpaid fees to Your provided payment method and/or send You a bill for such unpaid fees.
By using the Applications and/or the Services provided on or through the Applications, You consent to receiving electronic communications from Us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Applications and/or Services provided on or through the Applications. These electronic communications are part of Your relationship with Us. You agree that any notices, agreements, disclosures or other communications that We send You electronically will satisfy any legal communication requirements, including that such communications be in writing.
LINKS TO THIRD-PARTY SITES
We think links are convenient, and We sometimes provide links on the Applications to third-party websites. If You use these links, You will leave the Applications. We are not obligated to review any third-party websites that You link to from the Applications, We do not control any of the third-party websites, and We are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, We do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the thirdparty websites linked to from the Applications, You do this entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of the Applications may allow You to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow you to configure your privacy settings in that third-party website account to permit Your activities on the Applications to be shared with Your contacts in your third-party site account.
To be clear, We authorize Your use of the Applications only for the purposes specified within the Applications (“Permitted Purposes”). Any other use of the Applications beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of the Applications. This is because as between You and Us, all rights in the Applications remain Our property. Unauthorized use of the Applications may result in violation of various laws. Because We prefer keeping this relationship drama-free, We want to give You examples of things to avoid. So, unless You have written permission from Us stating otherwise, You are not authorized to use the Applications in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do): • For any public or commercial purpose which includes use of the Applications on another site or through a networked computer environment;
• In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of the Applications;
• In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
• To stalk, harass, or harm another individual;
• To impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity;
• To interfere with or disrupt the Applications or servers or networks connected to the Applications;
• To use any data mining, robots, or similar data gathering or extraction methods in connection with the Applications; or
• Attempt to gain unauthorized access to any portion of the Applications or any other accounts, computer systems, or networks connected to the Applications, whether through hacking, password mining, or any other means. You agree to indemnify, defend and hold Us harmless if You violate these Terms and that violation results in a problem for Us and generally from any damages or other losses, costs, or expenses we incur as a result of Your use of the Applications, the Services or the Materials. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You.
The Applications, the Services and the Materials, including, without limitation, their contents, text, graphics, images, logos, button icons, audio clips, and software are owned or controlled by Us or our suppliers and are protected by copyright, trademark, and other intellectual property laws. This information is a trade secret as that term is defined in the United States Trade Secret Act. In these Terms we are granting You a limited, personal, revocable, non-exclusive and non-transferable license to use the Materials solely for the Permitted Purpose. Your right to use the Materials is conditioned on Your compliance with these Terms. You have no other rights in the Applications or any Materials or Services and You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Applications, Materials or Services in any manner.
INTELLECTUAL PROPERTY INFRINGEMENT
We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We have a policy of removing user submissions that violate intellectual property rights of others, suspending access to the Applications (or any portion thereof) to any user who uses the Applications in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Applications in violation of someone’s intellectual property rights. Pursuant to Title 17 of the United States Code, Section 512, We have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of the Applications, please provide written notice to Our Agent for notice of claims of infringement:
Attn: Anwar Ghauche
Mail: 152 West 57th Street, 8th Floor, New York, NY 10019
To be sure the matter is handled immediately, Your written notice must:
• Contain Your physical or electronic signature;
• Identify the copyrighted work or other intellectual property alleged to have been infringed;
• Identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material;
• Contain adequate information by which We can contact You (including postal address, telephone number, and e-mail address);
• Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
• Contain a statement that the information in the written notice is accurate; and
• Contain statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner. Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern. Submitting a DMCA Counter-Notification We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person. Termination of Repeat Infringers We reserve the right, in Our sole discretion, to terminate the account or access of any user of the Applications or Service who is the subject of repeated DMCA or other infringement notifications.
DISCLAIMER OF WARRANTIES; LIMITATION ON LIABILITY THE APPLICATION, THE SERVICES AND THE MATERIALS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE APPLICATION, THE SERVICES AND THE MATERIALS IS WITH YOU. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE APPLICATION, SERVICES AND MATERIALS, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WE DO NOT WARRANT THAT THE APPLICATION, SERVICES OR MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE APPLICATION, SERVICES OR MATERIALS ARE FREE OF VIRUSES OR BUGS. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATIONS, SERVICES OR MATERIALS OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE APPLICATIONS, SERVICES OR MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE APPLICATIONS OR FROM US OR OUR SUBSIDIARIES/OTHER AFFILIATED COMPANIES SHALL CREATE ANY WARRANTY. WE DISCLAIM ALL EQUITABLE INDEMNITIES. THERE MAY BE TYPOGRAPHICAL ERRORS OR INACCURACIES IN THE APPLICATIONS, SERVICES OR MATERIALS, WHICH WE RESERVE THE RIGHT TO CORRECT AT ANY TIME. IN THE EVENT THAT A PRODUCT IS LISTED AT AN INCORRECT PRICE, WE SHALL HAVE THE RIGHT TO REFUSE OR CANCEL ANY ORDERS PLACED FOR THE PRODUCT LISTED AT THE INCORRECT PRICE. ANY ORDERS RECEIVED, WHETHER THEY HAVE BEEN PAID FOR OR NOT, MAY BE CANCELLED AND YOU SHALL RECEIVE A FULL REFUND FOR ANY INCORRECT CHARGES. IN NO EVENT SHALL WE OR OUR AFFILIATES, AGENTS, REPRESENTATIVES, EMPLOYEES, OFFICERS, DIRECTORS, SUPPLIERS OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY LOSS OR INJURY OR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER INCLUDING BUT NOT LIMITED TO: LOSS OF USE, DATA, REVENUE, OR PROFITS, WHETHER IN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS, USE OF, OR YOUR INABILITY TO ACCESS OR USE THE APPLICATION, SERVICES OR MATERIALS. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY FOR ANY CLAIM THAT YOU MAY HAVE RELATING TO THE APPLICATION, SERVICES OR MATERIALS IS YOUR RIGHT TO CEASE USE OF THE APPLICATION, SERVICES AND MATERIALS. LOCAL LAWS; EXPORT CONTROL
We control and operate the Applications from Our headquarters in the United States of America and the entirety of the Applications may not be appropriate or available for use in other locations. If You use the Applications outside the United States of America, You are solely responsible for following applicable local laws.
Any submissions by You to Us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER
Please Read This Provision Carefully. It Affects Your Legal Rights. This Provision facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding. This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of These Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at email@example.com the following information: (1)Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, than You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below. Exclusions from Arbitration/Right to Opt Out Notwithstanding the above, Your or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing Us at firstname.lastname@example.org the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court. Arbitration Procedures If this Provision applies and the dispute is not resolved as provided above (PreArbitration Claim Resolution) either You or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision. For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because the Applications and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement. Location of Arbitration – You or We may initiate arbitration in either New York, New York, or the federal judicial district that includes Your billing address. In the event that You select the latter, We may transfer the arbitration to New York, New York so long as We agree to pay any additional fees or costs which the arbitrator determines You incur as a result of the transfer. Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration fees and associated costs and expenses. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both You and We specifically agree to do so following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of the Applications can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
This Provision shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of the Applications. Notwithstanding any provision in this Agreement to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the language in this Provision if a dispute between Us arises.
We think direct communication resolves most issues – if We feel that You are not complying with these Terms, We will tell You. We will even provide You with recommended necessary corrective action(s) because We value this relationship. However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access to the Applications without prior notice to You. The Federal Arbitration Act, New York state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms or the Applications will be heard in the courts located in New York, New York. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforced any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about the Applications. The proprietary rights, disclaimer of warranties, representations made by You, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at:
368 9th Avenue, 5th Floor
New York, NY 10001
If any of these Terms should be determined to be illegal, invalid, or otherwise unenforceable by reason of the laws of any state or country in which these Terms are intended to be effective, then to the extent and within the jurisdiction which that term is illegal, invalid, or unenforceable, it shall be severed and deleted from these Terms and the remaining Terms shall survive, remain in full force and effect and continue to be binding and enforceable.