Last Modified on May 1, 2015
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
You must agree to this ToU in order to use the App, the Site and/or the Service. If you use the App, the Site and/or the Service, or click to join and/or sign in or agree to this ToU if presented to you in a user interface for the Service, we will understand this as your acceptance of this ToU and your agreement to all of its terms and conditions. By accepting this ToU or using the App, the Site and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use the App, the Site or the Service. If you are using the App, the Site or the Service on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to this ToU. If you do not have such authority, then you may not use the App, the Site or the Service on behalf of your employer and you must discontinue all use of the App, Site and the Service immediately.
1. ToU Updates. Company may update this ToU at any time and Company will make the updated ToU available or post the updated version of this ToU on the App and/or the Site. You understand and agree that you will be deemed to have accepted the updated ToU if you use the App, the Site or the Service after the updated ToU is made available to you. If at any point you do not agree to any portion of the ToU then in effect, you must immediately stop using the App, the Site and the Service.
2. Provision of the Service. You are solely responsible for all data, SMS and mobile carrier charges in connection with the mobile phones on which you have installed the App. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the App, the Site and the Service. You acknowledge and agree that Company may make changes to the App, the Site and/or the Service at any time without notifying you in advance.
3. Termination of Service. Company reserves the right to deny service to any person or entity at Company’s sole and absolute discretion. You acknowledge and agree that Company may stop providing the App, the Site and/or the Service or restrict your use of the App, the Site and/or the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU and/or if Company suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If Company disables your access to your account, you may be prevented from accessing the Service, your account details and/or any materials contained in your account.
4. Accounts and Security.
4.1. Account. To access certain aspects of the Service, you must have an account. You can create an account by completing the registration process. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to Company will be correct, accurate and up to date.
4.2. Fees. You agree to pay all fees and applicable taxes incurred by you or anyone using your account. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Company may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting an update of this ToU or posting such changes elsewhere on the App and/or the Site. If there is a dispute regarding your payment of fees, or the Service, Company shall have the right to terminate your account without prior notice. YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
4.3. Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password. You agree to notify Company immediately if you become aware of any unauthorized use of your password or of your account.
4.4. Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account. You may not disclose your password to anyone else.
4.5. Cancellation by You. You have the right to cancel your account at any time. You may cancel your account by notifying Company by email at [email protected] and by deleting the App from your device or by following the instructions provided through the Service for closing your account. Once you cancel your account, your personal information will no longer be viewable by other users. However, content previously shared with other users or posted to the App, the Site and/or the Service may remain viewable by those users until they delete such content.
4.6. Termination by Company. Company may at any time terminate your account if:
a. Company determines that you are (a) in breach of or otherwise acting inconsistently with this ToU or (b) engaging in fraudulent or illegal activities or other conduct that may result in liability to Company;
b. Company determines it is required by law to terminate your account; or
c. Company decides to stop providing the Service or critical portions of the Service in the country where you reside, access the App, the Site or use the Service or Company determines that it is no longer in its business interests to continue providing the Service or critical portions of the Service.
4.7. Effect of Account Termination or Cancellation. If you voluntarily terminate your account or allow that account to lapse, you will be able to create a new account through the account interface on the App and/or the Site. Accounts terminated by Company for any type of abuse including, without limitation, a violation of this ToU, may not be reactivated for any reason and the Company reserves the right to deny the ability to create an account to a person identified with an account that was terminated by the Company.
5. App Use Requirements.
5.1. Installation. To use the service on an App, you will be required to install the App on one or more mobile devices that you own or control and that meet the minimum specifications provided by Company.
5.2. Updates. Company may require that you download and install updates to the App from time to time. You acknowledge and agree that Company may update the App with or without notifying you and add or remove features or functions to the App at any time in its sole discretion. You acknowledge and agree that Company has no obligation to make the App available to you, make any subsequent versions of the App available to you or to continue to support the App in any way. You acknowledge that your access to the App may not be continuous, features may change during your use of the App, and Company may terminate your access to the App or stop offering the App at any time.
5.3. Agreements. You acknowledge that you may only use the App in connection with the Service provided through the App in accordance with this Agreement. The requirements hereunder and this Agreement may change as the App and/or Service evolve.
6. License; Restrictions and Conditions of Use.
6.1. License. Subject to the terms and conditions of this Agreement and for the sole purpose of using the Service, Company hereby grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to (i) install the App on one or more mobile devices which are owned by you, are under your control and which meet Company’s minimum specifications; and (ii) view, review and utilize the App and any related information provided to you by Company.
6.2. Use of the Site. Company permits you to view and use the App and/or the Site solely for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the App, the Site or through the Service.
6.3. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the Service. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers) and you agree to comply with the instructions contained in any robots.txt file present on the App, the Site or the Service.
6.4. No Violation of Laws. You agree that you will not, in connection with your use of the App, the Site or the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the App, the Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
6.5. Use Restrictions. You may not connect to or use the App, the Site or the Service in any way that is not expressly permitted by this ToU.
a. You may not: (a) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (b) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of Company; or (c) make any false, misleading or deceptive statement or representation regarding Company and/or the App, the Site or the Service.
b. Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the App, the Site and/or the Service (or any servers, systems or networks connected to the App, the Site or the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the App, the Site and/or the Service or any other person’s or entity’s use of the App, the Site and/or the Service (or any servers, systems or networks connected to the App, the Site or the Service); (ii) attempt to gain unauthorized access to the App, the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the App, the Site and/or the Service; (iii) charge any person or entity, or receive any compensation for, the use of the App, the Site or the Service, unless you are specifically authorized to do so in a separate written agreement with Company; (iv) use the App, the Site or the Service to (y) develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; or (z) perform any unsolicited commercial communication not permitted by applicable law; or (v) engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
c. Without limiting the foregoing, you agree that you will not use the Service (i) for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for the use of the Service or any manner not permitted by the licenses granted herein; or (ii) for any other unlawful, prohibited, abnormal or unusual activity Company may determine, in Company’s sole discretion.
6.6. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email addresses, mailing addresses or mobile phone numbers of other account holders or other software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the App, the Site or the Service, whether through the use of a network analyzer, packet sniffer or other device; (c) intercept, examine or otherwise observe any conversations or chats between other account holders; or (d) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the App, the Site or the Service.
6.7. Violation of this ToU. You acknowledge and agree that you are solely responsible, and Company has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. Company may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 6 or any other terms of this ToU.
7.1. Links from the Service. The App and/or the Site may contain links to websites operated by other parties. Company provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of Company and Company is not responsible for the content available on the other websites. Such links do not imply Company’s endorsement of information or material on any other website and Company disclaims all liability with regard to your access to and use of such linked websites.
8. Intellectual Property.
8.1. Trademarks. The Company name and its associated logo are trademarks of the Company with all rights, title and interest therein. Unless permitted in a separate written agreement with Company, you do not have the right to use any of Company’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
8.2. Ownership. You acknowledge and agree that Company, or its licensors, owns all right, title and interest in and to the App, the Site and the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the App, the Site and the Service are protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that Company has designated as confidential and you agree not to disclose such information without Company’s prior written consent.
8.3. Copyright Agent. Company respects the intellectual property rights of others, and requires that the people who use the App, the Site and the Service do the same. Company maintains a policy of termination in appropriate circumstances of users who use the App, the Site and/or the Service for repeat infringements. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
•Your address, telephone number, and email address;
•A description of the copyrighted work that you claim has been infringed;
•A description of where the alleged infringing material is located;
•A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
•An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
•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.
Copyright Agent: Legal Department
3240 El Camino Real
Tel: (949) 419-0262
Email: [email protected]
9. Social Networks. The Service includes features that operate in conjunction with certain third party social networking websites that you visit such as Facebook, Pinterest and Twitter (“Social Network Features”). While your use of the Social Network Features is governed by this ToU, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. It is impossible for Company to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites. You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT COMPANY WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
11. Location. The App, the Site and the Service are operated by Company in the United States. If you choose to access the App, the Site and/or the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
12. Submitted Content.
12.1. Content of Communications. Company is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service. By using the Service, you agree that any content that you submit is viewable by other users of the Service. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. The content of communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Service. In particular, you are responsible for ensuring that you do not submit material that is (i) copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner (ii) a falsehood or misrepresentation (iii) offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; (iv) an advertisement or solicitation of business; or (v) impersonating another person. Company may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Service or its customers, or otherwise enforce the terms of this ToU. Further, Company may in its sole discretion remove such content and/or terminate this ToU and your Account if you use any content that is in breach of this ToU.
12.2. Company does not claim ownership of any communications or materials you submit or make available through the App, the Site and/or the Service (“Submitted Content”) via Forums, Blogs, email functions, chat functions or any other function on the App, the Site and/or Service which allows you to post, upload, edit, host, share and/or publish content. With respect to such Submitted Content, you grant Company a perpetual, irrevocable, non-terminable, transferable, worldwide, royalty-free, sublicenseable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of such Submitted Content in connection with the Service and Company’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Submitted Content through the Service while the Submitted Content is made available through the Service. You may take down any Submitted Content at any time; however, you acknowledge and agree, that Company may still have access to such Submitted Content and that the above licenses granted by you to Company will remain despite your removal of such Submitted Content from the Service. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text or images) to which you do not have the full right to grant the license specified in this Section 12.2.
12.3. You acknowledge and agree that: (i) by using the App, the Site or Service, you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (ii) you are solely responsible for, and Company has no responsibility to you or any third party for any Submitted Content that you create, submit, post or publish on the App, the Site or Service; (iii) Company does not guarantee any confidentiality with respect to Submitted Content, whether or not they are published (iv) Company is not responsible for any Submitted Content that you may have access to through your use of the App, the Site or Service and all Submitted Content are the responsibility of the person from whom such Submitted Content originated. You acknowledge and agree that (i) Company has no control over and is not responsible for the use of Submitted Content by a user, including any user that has uploaded such Submitted Content to such user’s personal device; and (ii) Company may not be able to remove certain Submitted Content that is uploaded onto another user’s device. Company does not endorse any Submitted Content or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with Submitted Content.
12.4. You acknowledge that Company has the right to pre-screen any Submitted Content, but no obligation to do so. At Company’s sole discretion, any Submitted Content may be included in the Service in whole or in part in a modified form. In addition, Company and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Submitted Content that is available via the Site and/or the Service that violates this TOU or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property.
12.5. You acknowledge that the Submitted Content is your sole responsibility. You are entirely responsible for the Submitted Content and agree, under no circumstance, will Company be liable in any way for Submitted Content, including, but not limited to, for any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Service.
12.6. You acknowledge and agree that you are solely responsible for your interaction with other users of the Service, whether online or offline. You agree that Company is not responsible or liable for the conduct of any user. Company reserves the right, but has no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment when interacting with others, including when you submit or post content or any personal or other information.
13. Children. The App, the Site and the Service are not directed toward children under 13 years of age nor does Company knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personal information about yourself to Company.
14. Disclaimer of WarrantIES.
14.1. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE APP, THE SITE AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE APP, THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
14.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
14.3. COMPANY MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE APP, THE SITE OR THE SERVICE.
14.4. COMPANY DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE APP, THE SITE AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE APP, THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE APP, THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE APP, THE SITE OR THE SERVICE WILL BE CORRECTED; OR (e) THE APP, THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14.5. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP, THE SITE OR THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
15. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.
a. ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE APP, THE SITE AND/OR THE SERVICE, EVEN IF COMPANY AND/OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
c. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE APP, THE SITE OR THE SERVICE.
15.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR:
15.2. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF COMPANY OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Company and the Related Parties shall be limited to the fullest extent permitted by law.
16. Indemnification. You agree to indemnify, defend and hold Company and the Related Parties harmless from any and all claims, demands, damages or other losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (i) your use of the Site and/or the Service or (ii) your breach of this ToU or any other policies that Company may issue for the Site and/or the Service from time to time.
17. Governing Law; Jurisdiction. This ToU is governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Company agree that the state and federal courts located in the County of Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Site or the Service and agree to submit to the personal jurisdiction and venue of such courts. Notwithstanding the foregoing, Company shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
18. Binding Arbitration.
18.1. Arbitration Procedures. You and Company agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 188 and the JAMS Rules, the terms in this Section 188 will control and prevail.
Except as otherwise set forth in Section 18.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Company will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and Company may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND COMPANY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
18.2. Location. The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
18.3. Limitations. You and Company agree that any arbitration shall be limited to the Claim between Company and you individually. YOU AND COMPANY AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
18.4. Exceptions to Arbitration. You and Company agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Company’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
18.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
18.6. Severability. You and Company agree that if any portion this Section 18 is found illegal or unenforceable (except any portion of Section 18.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 18.4 is found to be illegal or unenforceable then neither you nor Company will elect to arbitrate any Claim falling within that portion of Section 18.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and Company agree to submit to the personal jurisdiction of that court.
19.1. ToU Revisions. This ToU may only be revised in a writing signed by Company, or published by Company on the Site.
19.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this ToU or your use of the Site or the Service.
19.3. Assignment. Company may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without Company’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
19.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
19.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
19.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Company of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
19.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: SuperFoodsRx, 3240 El Camino Real, Irvine, CA 92602, ATTN: Legal Department.
19.8. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Site or the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
19.9. Equitable Remedies. You acknowledge and agree that Company would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
19.10. Entire Agreement. This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and Company with respect to the Site and the Service and supersedes any and all prior agreements between you and Company relating to the Site and/or the Service.
20. Utilizing Your Computer or Other Device. Some of the benefits of the Service require the Service to access information on your computer or other applicable device. You hereby grant permission for the Service to monitor your computer or other applicable device (including, but not limited to, your device’s memory) and to communicate information, including, without limitation, your Account information, to the Company’s servers for the purposes of analyzing your device’s performance during use of the Service. Additionally, the Service will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Service.