I. Introduction and Eligibility
This agreement is a legally binding contract. It may change as our business changes, and you agree you will review it and any updates regularly. Your continued use of the Service means you accept any changes to these Terms.
a. Binding Agreement. These Terms constitute a binding agreement between you and HEYMAMACO LLC and its affiliates and subsidiaries (“Company,” “HEYMAMA,” “we,” or “us”). “You” and “users” means all visitors to the Service. You accept these Terms each time you access the Service. If you do not accept these Terms, you must not use the Service. If you are under 18 years of age, you represent and agree that you possess the legal consent of your parent or guardian to access and use the Service.
b. Revisions to Terms. We may revise these Terms at any time by posting an updated version; provided, however, that we will endeavor to provide you with prior notice of any material changes to these Terms. You should visit this page periodically to review the most current Terms, because you are bound by them. Your continued use of the Service after a change to these Terms constitutes your binding acceptance of these Terms.
c. The terms “Post” and “Posting” as used in these Terms means the act of submitting, uploading, publishing, displaying, or similar action on the Service.
II. The Service. The “Service” means, collectively, the Company website (the “Website”), mobile application, or other Internet service under Company’s partial or complete control that provides a content and influencer network aiming to connect mother entrepreneurs globally through social and digital channels.
III. Eligibility to Use the Service
a. Children. No part of the Service is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
b. Agent of a Company, Entity, or Organization. If you are using the Service on behalf of a company, entity, or organization (collectively “Organization”), then you represent and warrant that you:
1. are an authorized representative of that Organization;
2. have the authority to bind that Organization to these Terms; and
3. agree to be bound by these Terms on behalf of that Organization.
IV. Your Account
You are responsible for your log-in credentials and for keeping your information accurate. You are responsible for any activity resulting from the use of your log-in credentials on the Service.
You represent and warrant that the information you provide to Company upon the
licensing of the Service and at all other times will be true, accurate, current, and complete.
a. Your Log-In Credentials. To use the Service, you will have log-in information,
including a username and password. You may always browse the public-facing pages of the Service without registering, but to take full advantage of the Service, you will need to create an account. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Service and to preserve the confidentiality of your username and password, and any device that you use to access the Service.
b. You agree to notify us immediately of any breach in secrecy of your log-in information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Company by e-mail at firstname.lastname@example.org. You will be solely responsible for the losses incurred by Company and others due to any unauthorized use of your account.
Company may communicate with you by email or posting notice on the Service. You may request that we provide notice of security breaches in writing.
a. You agree to receive email from us at the email address you provided to us for customer service-related purposes.
b. Electronic Notices. By using the Service or providing personal information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at email@example.com.
VI. Company’s Content Ownership and Use
a. The contents of the Service include: designs, text, graphics, images, video,
information, logos, button icons, software, audio files, computer code, and other Company content (collectively, “Company Content”). All Company Content and the compilation (meaning the collection, arrangement, and assembly) of all Company Content are the property of Company or its licensors and are protected under copyright, trademark, and other laws.
b. License to You. We authorize you, subject to these Terms, to access and use the Service. Any other use is expressly prohibited. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Company Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original Company Content on any copy you make of the Company
c. Company Marks. Company logos and other Company product and service names are or may be Company’s trademarks (the “Company Marks”). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use in any manner the Company Marks.
VII. Intellectual Property Rights and Your License to Use
You, or the people who allow you to use their content, own all of the content you
post using the Service. However, we may use it for any purpose, including in our
marketing materials. We may also modify your content to make it work better.
It is very important that you have permission to use other people’s content or they
may be able to sue you for violating their legal rights.
a. Company Claims No Ownership. The Service may provide you with the ability
to create, post, or share content (“User Content”). Company claims no ownership or control over your User Content. You or a third-party licensor, as appropriate, retain all copyright, patent, and trademark rights to any of the content you post on or through the Service. You are responsible for protecting those rights.
wide, non-exclusive, sub-licensable, royalty-free, transferable license to use, modify, remove, publish, transmit, or display and distribute your User Content for any purpose without compensation to you, including for the purpose of promoting Company and its services. You waive any rights you may have regarding your User Content being altered or manipulated in any way that may be objectionable to you. This license will continue even after you stop using the Service. Company reserves the right to refuse to accept, display, or transmit any User Content in its sole discretion.
c. You Acquire No Ownership of Others’ Content. You understand and agree that you will not obtain, as a result of your use of the Service, any right, title, or interest in or to such content delivered via the Service or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets, or other rights) in the content.
d. You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own the User Content posted by you on or through the Service or otherwise have the right to grant the license set forth in these Terms, (ii) the Posting and use of any User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the Posting of User Content on the Service does not result in a breach of contract between you and a third party.
You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you Post on or through the Service. You also acknowledge and agree that your User Content is non-confidential and non-proprietary.
e. The Service contains content from users and other Company licensors. Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the Service.
f. Third Party Links. Company may provide, or third parties may provide, on or through the Service, links to other websites or resources. You acknowledge and agree that we have no control over such sites and resources, are not responsible for the availability of such external sites or resources, and do not endorse nor are we responsible for or liable for any losses, expenses or damages, to you or your software, hardware or data, arising out of the operations of such external sites or resources. These links sites are for your convenience only, and you access them at your own risk, regardless of whether we receive compensation, commission or share of revenues generated by purchases via such links. YOUR COMMUNICATIONS AND DEALINGS WITH THIRD PARTIES THROUGH SUCH LINKS INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH COMMUNICATIONS AND DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY.
VIII. Copyright Policy
Tell us if you think a user has violated your copyright using the Service, or if you think someone incorrectly reported that you violated his or her copyright.
a. Company respects the intellectual property of others and takes the protection
of intellectual property very seriously, and we ask you to do the same. Infringing activity will not be tolerated on or through the Service. Company’s intellectual property policy is to (i) remove or disable access to material that Company believes in good faith, upon notice from an intellectual property owner or its agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any User Content uploaded to the Service by “repeat infringers.” Company considers a “repeat infringer” to be any user that has uploaded User Content or Creative Ideas (as defined below) to or through the Service and for whom Company has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Creative Ideas. Company has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Company’s own determination.
b. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Company may share your Notification of Claimed Infringement with the user alleged to have infringed a right you own or control, and you consent to Company making such disclosure. Your communication must include substantially the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Company to locate the material;
Information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
c. Designated Agent Contact Information. Company’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via E-mail: firstname.lastname@example.org
Via U.S. Mail: HEYMAMACO LLC
Attn: Designated DMCA Agent
62 Powers Street
Brooklyn, NY 11211
d. False Notifications of Claimed Infringement or Counter Notifications.
The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the
Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f).
Company reserves the right to seek damages from any party that submits a notification under this Section in violation of the law.
IX. Suggestions and Submissions
We appreciate your comments, but if you send us creative ideas, we can use them without compensating you. We appreciate hearing from our users and welcome your comments regarding the Service. Please be advised, however, that if you send us creative ideas, suggestions, inventions, or materials (collectively, “Creative Ideas”), we will:
1. own, exclusively, all now known or later discovered rights to the Creative Ideas;
1. not be subject to any obligation of confidentiality and shall not be liable for any use or disclosure of any Creative Ideas; and
2. be entitled to unrestricted use of the Creative Ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.
X. User Content Disclaimers, Limitations, and Prohibitions
You are responsible for your actions when using and relying on the Service or content available on the Service.
a. We do not represent or guarantee the truthfulness, accuracy, or reliability of any User Content. You accept that any reliance on material posted by other users or third-party service providers will be at your own risk. By using the Service, you accept the risk that you might be exposed to content that is objectionable or otherwise inappropriate.
b. You are solely responsible for your User Content on the Service. Company does not endorse any, nor is it responsible for, User Content on the Service. You assume all risks associated with your User Content, including anyone’s reliance on its quality, accuracy, or reliability. You may expose yourself to liability if, for example, your User Content contains material that is false, intentionally misleading, or defamatory; violates third-party rights; or contains material that is unlawful or advocates the violation of any law or regulation.
Do not do bad things with the Service, try to break it, or steal our hard work.
c. You agree to use the Service only for its intended purpose. You must use the
Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. You must comply with the following:
i. You may access the Service solely as intended through the provided functionality of the Service and as permitted under these Terms.
ii. Unless expressly permitted, you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service without Company’s prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without Company’s express written consent:
A. altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
B. using any trademarks, service marks, design marks, logos, photographs or other content belonging to Company or obtained from the Service.
iii. You agree not to bypass, circumvent, damage or otherwise interfere with any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine Company Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage.
iv. You agree not to undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including any Company Content available on or through the Service, or attempt to do any of the foregoing, except and solely to the extent these Terms permit, the authorized features of the Service, or by
law, or otherwise attempt to use or access any portion of the Service other than as Company intends.
v. You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service, including any Company Content available on or through the Service, or any portion thereof, through any other application or website, unless and solely to the extent Company makes available the means for embedding any part of the Service or Company Content.
vi. You agree not to access, tamper with, or use non-public areas of the Service, Company’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Company’s providers.
vii. You agree not to harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Company employees and other users.
viii. You agree not to provide any false personal information to Company or any other user, or create a false identify or impersonate another person or entity in any way.
ix. You agree not to create a new account with Company, without Company’s express written consent, if Company has previously disabled an account of yours.
x. You agree not to solicit, or attempt to solicit, personal information from other users.
xi. You agree not to restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users.
xii. You agree not to use the Service, without Company’s express written consent, to communicate or facilitate any commercial advertisement, solicitation, promotion or product endorsement.
xiii. You agree not to gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service.
xiv. You agree not to post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service.
xv. You agree not to interfere with or disrupt the Service, or networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers.
xvi. You agree not to violate any applicable federal, state or local laws or regulations or these Terms.
xvii. You agree not to use the Service to build a competitive product or service.
xviii. You agree not to share redemption/discount codes provided to HEYMAMA members with non-members or use such codes for any improper purpose.
xix. You agree not to assist or permit any persons in engaging in any of the activities described above. A breach of these restrictions may subject you to prosecution and damages, as well as liability for infringement of intellectual property rights.
XI. Consequences of Violating These Terms
If you do not act acceptably, we may prohibit your use of the Service.
We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future.
Company may review and remove any User Content at any time for any reason, including activity which, in its sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, users of the Service.
You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of these Terms and your use of the Service.
XII. Company’s Liability
We are not liable for the actions of users when they use the Service. We may also change the Service at any time and are not liable for how this may affect you. We do not guarantee the quality or accuracy of any content you view using the Service or other websites.
a. Changes to the Service. We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Site or any feature, without notice or liability.
b. User Disputes. We are not responsible for any disputes or disagreements between you and any third party you interact with using the Service, including any member of Company’s perks program (“Perk Member”). You assume all risk associated with dealing with third parties and Perk Members. You agree to resolve disputes directly with the other party. You release
Company of all claims, demands, and damages in disputes among users of the Service. You also agree not to involve us in such disputes. Use caution and common sense when using the Service.
c. Content Accuracy. We make no representations about accuracy, reliability, completeness, or timeliness of any contents of the Service. Similarly, we make no representations about accuracy, reliability, completeness, or timeliness of any data from a third- party service provider or the quality or nature of third-party products or services obtained through the Service. Use the Service at your own risk.
d. Third-Party Sites. The Service may include links to Third Party Sites and applications, including those of Perk Members. You are responsible for evaluating whether you want to access or use them. We are not responsible for and do not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and we disclaim all liability arising from your use of them.
e. We make no promises and disclaim all liability of specific results from the use of the Service.
f. Released Parties Defined. “Released Parties” include Company and its affiliates, officers, employees, agents, partners, and licensors.
g. DISCLAIMER OF WARRANTIES
You use the Service at your own risk. We make no warranties or guarantees.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY GOODS OR SERVICE AVAILABLE ON THE SERVICE WILL MEET YOUR EXPECTATIONSAND, AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
h. LIMITATION OF LIABILITY AND INDEMNIFICATION
We are not liable for anything that happens to you that somehow may be connected to your use of the Service. If you use the Service in a way that causes us to be included in litigation, you agree to pay all legal fees and costs for Released Parties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE BY YOU, YOUR REPRESENTATIVES OR COMPANY’S PERK MEMBERS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv)
STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICE; (v)
YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF COMPANY CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
i. You agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) your use of or reliance on any third-party content,
(ii) your use of or reliance on any Company Content, or (iii) your breach of these Terms. We will provide notice to you promptly of any such claim, suit, or proceeding.
XIII. General Terms
These Terms constitute the entire agreement between you and Company concerning your use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these 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 these Terms remain in full force and effect. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect.
XIV. Arbitration, Class Waiver, and Waiver of Jury Trial
We are located in New York, so all disputes must be resolved there. We will use arbitration to resolve any problems, and you cannot join a class action lawsuit or obtain a jury trial for any disputes you have with us related to your use of the Service.
a. Mandatory Arbitration. Please read this carefully. YOU AND COMPANY AND EACH OF OUR RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, PERMITTED ASSIGNS, AND ANY OTHER PARTIES ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICE AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
i. Commencing Arbitration. A party intending to seek arbitration must first send to the other, by an international courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address Company provides to you, via any other method available to Company, including via e-mail. The Notice to Company must be addressed to 62 Powers Street, Brooklyn, NY 11211, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must
(A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If you and Company do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Company may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) WILL ADMINISTER THE ARBITRATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THESE TERMS. The Rules and AAA forms are available online at http://www.adr.org. If you are required to pay a filing fee to commence an arbitration against Company, then Company will promptly reimburse you for your confirmed payment of the filing fee upon Company’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
ii. Arbitration Proceeding. The
arbitration will be in English. A single independent and impartial arbitrator with his or her primary place of business in New York, New York will be appointed pursuant to the Rules, as modified herein. You and Company agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) arbitration will only be conducted if the damages sought exceed $75,000; (B) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (C) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (D) any judgment on the award the arbitrator renders may be entered in any court of competent jurisdiction.
iii. No Class Actions. YOU AND
COMPANY AGREE THAT YOU AND COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
iv. Decision of the Arbitrator.
Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of New York in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
b. Equitable Relief. The foregoing provisions of this Section do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. You acknowledge that, in the event Company or a third party breaches these Terms, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Company, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in these Terms.
c. Claims. You and Company agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
d. Improperly Filed Claims. All claims you bring against Company must be resolved in accordance with this Section. All claims filed or brought contrary to this Section will be considered improperly filed. Should you file a claim contrary to this Section, Company may recover attorneys’ fees and costs up to $5,000, provided that Company has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
e. Modifications. In the event that Company makes any future change to the Mandatory Arbitration provision (other than a change to Company’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to Company’s Arbitration Notice Address, in which case your account with Company and your license to use the Service will terminate immediately, and this Section, as in effect immediately prior to the amendments you reject, will survive the termination of these Terms.
f. Enforceability. If only Section XIII.a.iii or the entirety of this Section XIII is found to be unenforceable, then the entirety of this Section XIII will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section XIV will govern any action arising out of or related to these Terms.
XV. Governing Law; Choice of Forum. The laws of the State of New York, excluding its conflicts of law rules, govern these Terms and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.