Karma Terms of Service
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE "AGREEMENT") CAREFULLY. BY ACCESSING OR USING ANY WEBSITE OF KARMA MOBILITY, INC. ("COMPANY") WITH LINKS TO THIS AGREEMENT (COLLECTIVELY, THE "WEBSITE") IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A "SERVICE" AND COLLECTIVELY, THE "SERVICES") BY COMPANY OR USERS OF THE SITE ("USERS"), CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THESE TERMS. THE TERM "YOU" REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE CUSTOMER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
Your use of, and participation in, certain Services may be subject to additional terms ("Supplemental Terms") and such Supplemental Terms will either be listed in these Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Service are inconsistent with such Supplemental Terms, the Supplemental Terms shall control with respect to such Service. These Terms of Service and any applicable Supplemental Terms are referred to herein as the "Terms."
PLEASE NOTE THAT The Terms are subject to change by Company in its sole discretion at any time. When changes are made, Company will make a new copy of the Terms of Service available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the "Last Updated" date at the bottom of these Terms of Service. If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to these Terms. Any changes to these Terms will be effective immediately for new Users of the Website or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing Users, provided that any material changes shall be effective for Users who have a registered account on the Website (each, a "Registered User") upon the earlier of thirty (30) days after posting of notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users. Company may require you to provide consent to the updated Terms in a specified manner before further use of the Website or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s).
1. Use of the Services and Company Materials
Access Right. Subject to the terms and conditions contained in this Agreement, Company grants You a non-exclusive, non-transferable right to access the features and functions of the Services during the Term. The information and content available on the Website and in the Services (as these terms are defined below) (collectively, the "Company Materials") are protected by copyright laws throughout the world. Subject to these Terms, Company grants you a limited license to reproduce portions of the Company Materials for the sole purpose of using the Services for your personal or non-commercial purposes.
Updates. You understand that the Website and the Services are evolving. You acknowledge and agree that Company may update the Website and/or the Services with or without notifying you.
Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website or any portion of the Website, including any Company Materials, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Materials (including images, text, page layout or form) of Company; (c) you shall not use any metatags or other "hidden text" using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Company Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in the Website; (f) access the Company Materials in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Company Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Company Materials. Any future release, update or other addition to the Company Materials shall be subject to these Terms. Company, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Website or the Services terminates the licenses granted by Company pursuant to the Terms. Notwithstanding the foregoing, decompiling any portion of the Company Materials is permitted to the extent the laws of your jurisdiction give you the right to do so to obtain information necessary to render the Company Materials interoperable with other software; provided, however, that you must first request such information from Company and Company may, in its discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on such use of the source code for such Company Materials to ensure that Company’s (and its suppliers’) proprietary rights in such source code are protected.
Registering your Account. In order to access certain features of the Website and the Services you may be required to become a Registered User. For purposes of these Terms, a "Registered User" is a User who has registered an account on the Website ("Account") and has a valid account on the social networking service ("SNS") through which the User has connected to the Services (each such account, a "Third Party Account").
Access through an SNS. If you access the Services through an SNS as part of the functionality of the Website and the Services, you may link your Account with Third Party Accounts, by either (i) providing your Third Party Account login information to Company through the Website or the Services; or (ii) allowing Company to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to Company and/or grant Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Company to pay any fees or making Company subject to any usage limitations imposed by such third party service providers. By granting Company access to any Third Party Accounts, you understand that Company will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account ("SNS Content") so that it is available on and through the Website and Services via your Account and your profile page Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Account on the Website and Services. Please note that if a Third Party Account or associated service becomes unavailable or Company’s access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Website and Services. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the "Settings" section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement and Company is not responsible for any SNS Content.
Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the "Registration Data"); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Company Materials or the Services by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Company Materials and/or the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Company Materials and/or the Services if you have been previously removed by Company, or if you have been previously banned from the Services.
Activities Under your Account. You are responsible for all activities that occur under your Account. You are responsible for any use of your credit card or other payment instrument (e.g., PayPal) by minors. You may not share your Account or password with anyone, and you agree to (1) notify Company immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
Necessary Equipment and Software. Other than the Wi-Fi hotspots purchased from the Company, you must provide all equipment and software necessary to use to the Company Materials and the Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Company Materials and the Services.
3. Responsibility for Content
Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Website or the Services, whether publicly posted or privately transmitted, including the Company Materials ("Content"), are the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available ("Make Available") through the Services or the Website ("Your Content"), and other Users of the Services, and not Company, are similarly responsible for all Content they Make Available through the Services or the Website ("User Content").
No Obligation to Pre-Screen Content. You acknowledge that Company has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Company pre-screens, refuses or removes any Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Storage. Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content that you Make Available on the Website or via the Services. Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Company retains the right to create reasonable limits on Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Company in its sole discretion.
Company Materials. Except with respect to Your Content and User Content, you agree that Company and its suppliers own all rights, title and interest in the Website, the Services, and the Company Materials. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Company Materials.
Trademarks. "Karma" and other related graphics, logos, service marks and trade names used on the Website, in the Company Materials or in connection with the Services are the trademarks of Company and may not be used without permission in connection with any third party products or services. Other trademarks, service marks and trade names that may appear on the Website, in the Company Materials or in connection with the Services are the property of their respective owners.
Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Website or the Services, you hereby expressly permit Company to identify you by your Facebook profile photo and your first name as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum or similar pages ("Feedback") is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Website and the Services.
5. User Conduct
As a condition of use, you agree not to use the Website, the Services or the Company Material for any purpose that is prohibited by these Terms or by applicable law. You shall not (and shall not permit any third party) either (a) to take any action or (b) Make Available any Content on or through the Website and the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Company’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Company; or (vi) to attempt or engage in, any potentially harmful acts that are directed against the Website or the Services, including but not limited to violating or attempting to violate any security features of the Website or Services, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in the Website or Services, introducing viruses, worms, or similar harmful code into the Website, Services or Company Materials, or interfering or attempting to interfere with use of the Website or Services by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing", or "crashing" the Website or the Services.
Company may, but is not obligated to, monitor or review the Services and Content at any time. Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Company does not generally monitor user activity occurring in connection with the Website, Services, Company Materials, or Content, if Company becomes aware of any possible violations by you of any provision of the Terms, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate your license to use the Website, Services, or Company Materials, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. Interactions with Other Users
User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Company reserves the right, but has no obligation, to intercede in such disputes.You use all User Content and interact with other Users at your own risk. Your interactions with other Users are solely between you and the other User and we are under no obligation to become involved. You agree that Company will not be responsible for any liability incurred as the result of such interactions.
Release. If you have a dispute with one or more Users, you release Company and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the "Company Parties") from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.If you are a California resident, you waive California Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not now or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
8. Third-Party Websites & Ads
The Website, Services, and Company Materials may contain links to third-party websites ("Third Party Websites"). When you click on a link to a Third Party Website, we will not warn you that you have left our Website and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third Party Websites are not under the control of Company. Company is not responsible for any Third Party Websites. Company provides these Third Party Websites only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, or their products or services. You use all links in Third Party Websites at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. Interactions with Other Users
Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide Company with valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account ("Payment Provider") as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. By providing Company with your credit card number or PayPal account and associated payment information, you agree that Company is authorized to immediately invoice your Account for all fees and charges due and payable to Company hereunder and that no additional notice or consent is required. You agree to immediately notify Company of any change in your billing address or the credit card or PayPal account used for payment hereunder. Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you.
Fees. You will be responsible for payment of the applicable fee for any hardware purchased from the Company as well as any data packages made available by the Company in connection with the Services (collectively, the "Fees") at the time of purchase. Except as set forth in these Terms, all fees are non-refundable. No contract will exist between you and Company for hardware, data packages or the related Services until Company accepts your order by a confirmatory e-mail, SNS/MMS message, or other appropriate means of communication.
Taxes. Company’s fees are net of any applicable Sales Tax. If any Services, or payments for any goods or services, under this Agreement are subject to Sales Tax in any jurisdiction, Customer will be responsible for payment of such Sales Tax, and any related penalties or interest and will indemnify Company for any liability or expense Company may incur in connection with such Sales Taxes. For purposes of this Agreement, "Sales Tax" shall mean any sales or use tax, and any other tax measured by sales proceeds, that Company is permitted to pass to Customer that is (a) the functional equivalent of a sales tax and (b) the applicable taxiing jurisdiction does not otherwise impose a sales or use tax. Company may automatically charge and withhold such taxes for orders to be delivered to addresses within any jurisdictions that it deems is required. Customer will make all payments of fees to Company free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Company will be Customer’s sole responsibility, and Customer will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as Company may reasonably request, to establish that such taxes have been paid. When you order products for overseas delivery, you may be subject to import duties and taxes, which are levied when the package with the products arrives at the destination that you specified. Any charges for customs clearance have to be borne by you, as Company has no control over such charges and cannot foresee the amount charged (if any). Since customs policies vary from country to country, you should contact the customs office in the country where you have us ship your products to get more information. Please also be aware that you are considered the importer of record and must comply with all laws and regulations of such country.
You agree to indemnify and hold Company Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Website or the Services; (c) your violation of the Terms; (d) your violation of any rights of another party, or (e) your violation of any applicable laws, rules or regulations. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account or the Services.
11. Disclaimer of Warranties
AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEBSITE, THE SERVICES AND ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY IS AT YOUR SOLE RISK, AND THE WEBSITE, THE SERVICES AND ANY OTHER GOODS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY WILL MEET YOUR REQUIREMENTS; (2) THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY WILL BE CORRECTED.
(b) ANY CONTENT OR COMPANY MATERIALS DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WEBSITE, THE APPLICATION, THE SOFTWARE OR THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
12. Limitation of Liability
DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY OR THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE WEBSITE, THE APPLICATION, THE SOFTWARE OR THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE OR THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY COMPANY AS A RESULT OF YOUR USE OF THE WEBSITE, THE SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY COMPANY IN THE SIX MONTH PERIOD PRECEDING THE DATE WHICH YOU FIRST ASSERT CLAIM. IF YOU HAVE NOT PAID COMPANY ANY AMOUNTS DURING SUCH SIX MONTH PERIOD, COMPANY’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED FIFTY DOLLARS ($50).
STORAGE OF CONTENT. THE COMPANY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
INFORMATION VERIFICATION. COMPANY PARTIES MAY USE VARIOUS WAYS OF VERIFYING INFORMATION THAT USERS HAVE PROVIDED. HOWEVER, NONE OF THOSE WAYS ARE PERFECT, AND YOU AGREE THAT COMPANY AND ITS SUPPLIERS WILL HAVE NO LIABILITY TO YOU ARISING FROM ANY INCORRECTLY VERIFIED INFORMATION.
BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
13. Procedure for Making Claims of Copyright Infringement
It is Company’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website, or the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Website or Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows: S.A. VAN WEL, PO Box 975, New York, NY 10013.
14. Limitation of Liability
Term. These Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Website or any Services, unless terminated earlier in accordance with these Terms.
Termination of Services by Company. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of this Agreement, or if the Company is required to do so by law (e.g., where the provision of the Website or the Services is, or becomes, unlawful), Company has the right to suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Company’s sole discretion and that Company shall not be liable to you or any third party for any termination of your Account.
Termination of Services by You. If you want to terminate any Services provided by Company, you may do so by (a) notifying Company at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Company's address set forth below.
Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of these Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
Violations. If Company becomes aware of any possible violations by you of the Terms, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Website or in the Services, including Your Content, in Company’s possession in connection with your use of the Website or the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; or (5) protect the rights, property or personal safety of Company, its Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
Breach. In the event that Company determines, in its sole discretion, that you have breached any portion of these Terms, or have otherwise demonstrated conduct inappropriate for the Website, the Services or any other goods or services provided by Company, Company reserves the right to: (a) Warn you via e-mail (to any e-mail address you have provided to Company) that you have violated these Terms; (b) Delete any of Your Content provided by you or your agent(s) to the Website or the Services; (c) Discontinue your registration(s) with the Website and/or any Services or Company community; (d) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (e) Pursue any other action which Company deems to be appropriate.
No Subsequent Registration. If your registration(s) with or ability to access the Website or the Services, or any other Company community is discontinued by Company due to your violation of any portion of these Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Website or the Services or any other Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those materials or Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
16. International Users
This Website can be accessed from countries around the world and may contain references to services and Content that are not available in your country. These references do not imply that Company intends to announce such services or Content in your country. The Website and Services are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Website or the Services are appropriate or available for use in other locations. Those who access or use the Website or the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
17. General Provisions
Electronic Communications. The communications between you and Company use electronic means, whether you visit the Website or send Company e-mails, or whether Company posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Dispute Resolution. If you believe that Company has not adhered to these Terms, please contact Company by emailing us. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
Choice of Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflict of laws principles that require the application of the law of a different state. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which Company’s principal place of business is located for any lawsuit filed against you by Company arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Limitations Period. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE WEBSITE, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from New York law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that re applicable to your use of the Website and the Services.
(b) Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the "Rules") and shall be administered by the New York, New York office of JAMS (the "Administrator"). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be New York, New York USA. The Dispute(s) shall be submitted to a single arbitrator ("Arbitrator") chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. 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 will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 12 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
(c) By using the Website or the Services in any manner, you agree to the above arbitration provision. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Company (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required / permitted by these Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: PO Box 975, New York, NY 10013. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Export Control. You may not use, export, import, or transfer the Company Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Company Materials, and any other applicable laws. In particular, but without limitation, the Company Materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Company Materials, 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. You also will not use the Company Materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
18. International Provisions
The following provisions shall apply only if you are located in the countries listed below.
United Kingdom. A third party who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of such third party which exists or is available apart from that Act.
Germany. Notwithstanding anything to the contrary in Section12, Company is also not liable for acts of simple negligence (unless they cause injuries to or death of any person), except when they are caused by a breach of any substantial contractual obligations (vertragswesentliche Pflichten).
Version 1.0. Last Updated data December 4th, 2012.