Terms of Service
1. BECOMING A MEMBER OF AND REGISTERING FOR THE SERVICES.
A. Accessing the Services and Becoming a Member. To use the Services, you agree that: (1) you must be the “Minimum Age” (defined below) or older; (2) you will only have account, which must be in your real name; and (3) you are not already restricted by Glocal Circles, LLC. from using the Services.
“Minimum Age” means (a) 18 years old for the People's Republic of China, (b) 16 years old for the Netherlands, (c) 14 years old for the United States, Canada, Germany, Spain, Australia and South Korea, and (d) 13 years old for all other countries. However, if law requires that you must be older in order for Glocal Circles, LLC. to lawfully provide the Services to you (including the collection, storage and use of your information) then the Minimum Age is such older age. The Services are not for use by anyone under the age of 13.
Without limiting any of the foregoing, you are responsible for ensuring that the email address you provide to us is valid and that the services, software or systems you use to access your email ("Email Systems") do not block or filter Communications (as defined below). We ask that you use your personal email address when registering. If you provide us with a non-personal email address or use an Email System that interferes with the delivery of Communications, we may not be able to provide you with certain Services. Your failure to provide us with an email address to which we can consistently deliver email may result in the termination of your account.
C. Your Password. During the registration process we will provide you with a unique registration number. We will also either ask you to create a password or assign you a random password, which you can change at any time by logging onto the "Account" portion of the Services. Alternatively, you may have the option of using your Glocal Circles, LLC login credentials or similar login processes or co-registration forms from or on other third party websites to create an account and authenticate your access to the website. Because any activities that occur under your registration number or password are your responsibility, it is important for you to keep your registration number and password secure. Notify us immediately if you believe that someone has used your registration or password without your authorization.
2. PAID SERVICES.
Access to some of the Services requires the purchase of Paid Services. If you elect to purchase Paid Services, you agree to our storage of your payment information and understand that your Paid Services are personal to you, such that you may not transfer or make available your account name (and/or registration number) and password to others. Any distribution by you of your account name and password may result in cancellation of your Paid Services without refund and/or additional charges based on unauthorized use. We reserve the right, from time to time, to change the Paid Services, with or without prior notice to you.
A. Payment. Prices for all Paid Services are in U.S. dollars and exclude any and all applicable taxes, unless expressly stated otherwise. To the extent permissible under law, you are responsible for any applicable taxes, whether or not they are listed on your receipt or statement. All applicable taxes are calculated based on the billing information you provide us at the time of purchase. If you purchase Paid Services, you agree to pay, using a valid credit or debit card or other form of payment that we may accept from time to time ("Payment Method"), the applicable fees and taxes (if any) set forth in the offer that you accepted. We reserve the right, upon prior notice to you, to change the amount of any fees and to institute new fees, effective at the end of your current subscription period. All authorized charges will be billed to your designated Payment Method on the terms described in the specific offer. If payment cannot be charged to your Payment Method or your payment is returned to us for any reason, we reserve the right to either suspend or terminate your access to the unpaid-for Paid Services. It is your responsibility to ensure that sufficient funds are available to cover the charges for the Paid Services, and we have no liability for any overdraft or other fees that you may incur as a result of our processing of your payment.
B. Automatic Renewal Program. Upon your acceptance of an offer for the purchase of any subscription-based Paid Services, you will be enrolled in our automatic renewal program to help ensure that there is no interruption in your access to such Paid Services. Under this program, you authorize us to automatically renew your subscription at the end of the term of the subscription you purchased, and each subsequent term, for the same term length of the subscription you initially purchased (unless otherwise stated in the offer you accepted). Unless you change your renewal status as described below, at the time of each such renewal you authorize us to charge your designated Payment Method at the then-current, non-promotional price (unless otherwise stated in the offer you accepted) for the renewal of your subscription. If you no longer want to be enrolled in our automatic renewal program, you can change your renewal status at any time by logging onto the account portion of the Website, clicking on "Account & Billing" and changing your renewal option from "automatic" to "manual". Please note that changing your renewal option in this way will only stop future automatic renewals of your subscription and will not impact any automatic renewals that occurred prior to the date of your status change.
C. Current Information. You must provide us with current, complete and accurate information for your Payment Method. You must promptly update all information to keep your Payment Method current, complete and accurate (such as a change in billing address, card number or expiration date), and you must promptly notify us if your Payment Method is cancelled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). Changes to such information can be made by accessing "Account & Billing" on the Account portion of the Website. If you fail to provide us with any of the foregoing information, you agree that you are responsible for fees accrued under your Payment Method. In addition, you authorize us to obtain updated or replacement expiration dates and card numbers for your credit or debit card as provided by your credit or debit card issuer.
D. No Refund Policy. All fees relating to Paid Services, including the initial fees and any subsequent automatic renewal fees (as described above), are non-refundable. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, we may in our discretion cancel your Paid Services immediately. If we successfully dispute the reversal, and the reversed funds are returned to us, you are not entitled to a refund or to have your Paid Services reinstated.
3. MEMBER CONDUCT.
A. Community Guidelines. The Services contain areas that enable members to communicate and share information, including without limitation sending email through the Services, providing information on your profile pages, and posting information on message boards, forums and other areas where you may interact with other members (collectively, the "Communication Tools"). When you use the Communication Tools, you may have the opportunity to disclose, post, upload, or otherwise publicly display, or to share directly with other members, information and other content, including without limitation biographical information, photographs, stories and comments (collectively, "Content"). While we may provide you with these Communications Tools, we also wish to remind you that you should choose carefully what information you post via the Services and share with other members.
You are required to use the Communication Tools responsibly, just as you would act responsibly when communicating or interacting with others in your offline communities. As a result, we expect and require that you take full responsibility for the Content that you post on or send through the Services. We have established some "Community Guidelines" that outline your responsibilities when using the Communication Tools.
The following Community Guidelines apply to and govern your use of the Communication Tools:
Do not create a false identity, impersonate any person or entity, or otherwise misrepresent yourself, your age or your affiliation with any person or entity
Do not register more than one personal membership or register on behalf of another person
Do not post telephone numbers, street addresses or email addresses in Content that is publicly accessible on the Services, with the exception of the location of a reunion or other appropriate event
Do not engage in behavior meant to threaten, harass, intimidate or bully others or which constitutes predatory or stalking conduct
Do not use the Services as a venue to air personal disputes with other individuals
Do not provide any Content that is illegal, obscene, pornographic or sexually explicit, depicts graphic or gratuitous violence or illegal drug paraphernalia, or is derogatory, demeaning, malicious, defamatory, abusive, hateful, racially or ethnically offensive, or otherwise determined to be objectionable
Do not provide any Content that encourages a criminal offense or infringes, misappropriates, or otherwise violates the intellectual property rights or other rights of any third party
Do not post web addresses that link to pornographic or inappropriate content, websites that promote your or someone else's commercial gain, websites that provide services similar to those offered by us, or any other content that violates these Community Guidelines
Do not provide or post private communications from us or any other party without such party's permission
Do not copy or re-post content provided by others or otherwise use information or content you obtained on the Services in any manner not authorized by us or the contributor
Do not participate in any unauthorized or unsolicited promotions, advertising, junk mail, spam, or any other form of solicitation, or otherwise use the Services for any commercial purpose
Do not violate any applicable local, state, national and international law or regulation
Do not interfere with, interrupt, destroy or limit the functionality of the Services or any computer software or hardware or telecommunications equipment
Do not try to gain unauthorized access to the Services, other members' accounts, or computers connected to the Services
Do not collect users' content or information, or otherwise access the Services, using automated means, such as scripts, bots, robots, spiders or scrapers
Do not do anything that could damage, disable, overburden or impair the proper working or appearance of the Services, such as a denial of service attack or interference with page rendering or other functionality
B. Monitoring and Enforcement. We do not actively monitor the Communication Tools or the Content that is provided through such Communication Tools, nor are we obligated to do so. Accordingly, we do not guarantee the accuracy, integrity or quality of the Content. Because individuals sometimes choose not to comply with our policies and practices, you may be exposed to Content that you find offensive or otherwise objectionable. We encourage you to use the tools available on the Services to report any Content that you think may violate the Community Standards. We may investigate the complaints that come to our attention, but are not obligated to do so. If we choose to investigate, we will take any action that we believe is appropriate in our sole discretion, such as issuing warnings, removing the Content, or suspending or terminating accounts. However, because situations and interpretations vary, we also reserve the right not to take any action. In such cases, we may not remove Content that you believe is objectionable. Please remember that you can always choose to refrain from using any part of the Services that exposes you to something that you are uncomfortable with. Under no circumstances will we be liable in any way for any Content, including any errors or omissions in any Content or any loss or damage of any kind incurred as a result of the use of, access to or denial of access to any Content. In addition, we are not responsible for the conduct, whether online or offline, of any user of the Website or member of the Services.
4. SUBMITTING OR POSTING CONTENT.
We do not claim ownership of any of the Content you submit or post through the Services or allow us to obtain from third parties to include in the Services. Instead, you hereby grant us a royalty-free, worldwide, transferable, sub-licensable, non-exclusive license to use, reproduce, publish, store, distribute, display, communicate, perform, transmit, create derivative works based upon, and promote such Content (in whole or in part) in any medium now known or hereafter devised. Please remember that you are ultimately responsible for all of your Content, and you therefore warrant and represent that you are entitled to grant the foregoing license and that the Content does not violate any third party rights. No compensation will be paid for the use of your Content.
5. OUR PROPERTY RIGHTS.
The Services, and all of the content, information and other material that they contain, other than the Content posted by our users, are owned by us, or our third party licensors, and are protected by intellectual property and other rights and laws throughout the world. Subject to your compliance with these Terms of Service, we grant you a limited, revocable, non-exclusive, non-assignable, non-sublicenseable license for the period of your membership to access the Services and view any materials available on the Services for the sole purpose of using the Services. Aside from this limited license, nothing found on the Services maybe copied, reproduced, republished, distributed, sold, licensed, transferred or modified without our express written permission. In addition, the trademarks, logos and service marks displayed on the Services are our property or the property of our licensors. This Agreement does not grant you any right or license with respect to any such trademarks, logos or service marks. If you are aware of Materials on the Services that infringes the copyright or other right of a third party, please contact us through the Copyright Infringement Policy process, which is described in Section 10 below.
6. AVAILABILITY OF SERVICES.
We do not provide you with access to the Internet or the equipment necessary to access the Internet or the Services. You are responsible for the fees charged by others to obtain access to the Services and for obtaining the equipment necessary to access the Services. From time to time we may modify, suspend or discontinue any of the Services with or without notice to you. We shall not be liable to you for any such modification, suspension or discontinuance. We may establish certain policies and practices concerning use of the Services, such as the maximum number of email messages, message board postings or other Content that can be sent through the Services and the number of days that these items will be retained on our systems. We have no responsibility or liability for the deletion or failure to store any messages and other communications or other Content maintained or transmitted by or through the Services. We reserve the right to change our practices and policies at any time, in our sole discretion, with or without notice to you.
7. THIRD-PARTY OFFERS.
We may allow other companies to offer you products and services, including offers through the Services. Whether or not you decide to participate in such an offer is up to you. Your participation in any of these offers, including payment and delivery of related goods or services and the terms, conditions, warranties or representations associated with such offers, is solely between you and the third-party company. You agree that we shall not be liable for any costs or damages you may incur resulting from your decision to enter into such transactions.
8. LINKING TO OR FROM THE SERVICES.
You cannot link to the Services without our prior written consent. While the Services may have links to the websites of third parties, we have no control over those websites. We are not responsible or liable for any content, advertising, products, services, information or other materials on or available from those websites. We are also not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, advertising, products, services, information or other materials on those websites.
You may terminate your account, for any or no reason, at any time by contacting us. We may terminate your account, for any or no reason, at any time, with or without notice. If we determine, in our sole discretion, that you are not in compliance with these Terms of Service, we reserve the right to restrict, suspend or terminate your account. Upon any termination of your account, we may immediately deactivate or delete your account and all related information and/or bar any further access to your account, Content or information. If you have purchased Paid Services from us, any termination by you, or by us with cause, is subject to the no-refund policy described in Section 2.D above.
10. COPYRIGHT INFRINGEMENT POLICY.
In compliance with the Digital Millennium Copyright Act ("DMCA"), we have established the procedure outlined below to address alleged copyright infringement on the Services. If you believe that your work has been copied and has been posted on the Services in a way that constitutes copyright infringement, you may provide us with notice of your complaint by providing our Designated Copyright Agent with the following information in writing:
The electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf;
Identification of the copyrighted work that you claim has been infringed;
Identification of the material that is claimed to be infringing, with information about its location reasonably specific to permit us to locate the material;
Your name, address, telephone number, and email address;
A 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; and
A statement made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
To be effective, your notification must be in writing and include the above information. Our Designated Copyright Agent to receive your notification is:
We, in our sole discretion, reserve the right to refuse additional Content from members who have posted allegedly infringing material, delete the material, and/or to terminate such members' accounts.
After receiving a notification, we will process and investigate the notification and will take appropriate actions under the DMCA and other applicable intellectual property laws. Upon receipt of a notification that complies or substantially complies with the DMCA (as set forth above), we will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity, and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. We will promptly take reasonable steps to notify the member that is the subject of the notification that it has removed or disabled access to such material.
If you are subject to a notification, you may provide us with a counter notification by providing our Designated Copyright Agent the following information in writing:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which we may be found and that you will accept service of process from the person who provided the initial notification of alleged infringement.
Upon receipt of a proper counter notification under the DMCA (as set forth above), we will promptly provide the person who provided the initial notification with a copy of the counter notification and inform that person that we will reinstate the removed material or cease disabling access to it in ten (10) business days. Additionally, we will replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14) business days following receipt of the counter notice, unless our Designated Copyright Agent first receives notice from the person who submitted the initial notification that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Services.
11. DISCLAIMER OF WARRANTIES.
YOU UNDERSTAND AND AGREE THAT:
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE DISCLAIM TO THE FULLEST EXTENT PERMISSIBLE BY LAW, AND YOU WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE FUNCTIONS, MATERIALS AND CONTENT OF THE SERVICES ARE NOT WARRANTED TO BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND WE MAKE NO WARRANTY THAT THE INFORMATION ON THE SERVICES WILL BE ACCURATE, CURRENT OR RELIABLE OR THAT THE QUALITY ANY PRODUCTS, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY, OR UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL. YOU ASSUME THE ENTIRE RISK OF LOSS AND DAMAGE DUE TO YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO THE COST OF REPAIRS OR CORRECTIONS TO YOUR HARDWARE OR SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND AS A CONSEQUENCE SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU.
12. LIMITATIONS OF LIABILITY.
YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR SOLE RISK. WE, OUR PARENTS, SUBSIDIARIES AND OTHER AFFILIATES, AND THEIR RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, AND AGENTS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, WHICH YOU MAY INCUR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. OUR AGGREGATE LIABILITY WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND AS A CONSEQUENCE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Special Provisions Applicable to Users Outside the United States
We strive to create a global community with consistent standards for everyone, but we also strive to respect local laws. The following provisions apply to users and non-users who interact with Glocal Circles, LLC outside the United States:
You consent to having your personal data transferred to and processed in the United States.
If you are located in a country embargoed by the United States, or are on the U.S. Treasury Department's list of Specially Designated Nationals you will not engage in commercial activities on Glocal Circles, LLC (such as advertising or payments) or operate a Platform application or website. You will not use Glocal Circles, LLC if you are prohibited from receiving products, services, or software originating from the United States.
You shall indemnify and hold harmless, and at our request, defend us, our parents, subsidiaries, and other affiliates, as well as their respective directors, officers, shareholders, employees, agents and owners (each, an "Indemnified Party") from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys' fees, an allocation for in-house counsel, and other legal costs) arising out of your acts or omissions, including claims resulting from your use of the Services, your submission, posting or transmission of information or Content, or any breach of your obligations set forth in these Terms of Service. You shall reimburse each Indemnified Party on demand for any costs, expenses and liabilities incurred by such Indemnified Party to which this indemnity relates.
14. DISPUTE RESOLUTION
This section describes what rights the parties possess if they have a dispute.
A. Providing Notice of a Claim. The parties agree to arbitrate all disputes and claims between them ("Disputes or Claims"). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (1) Disputes or Claims related in any way to the Services, billing, privacy, advertising or our communications with you; (2) Disputes or Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (3) Disputes or Claims that arose before your agreement to these Terms of Services or any prior agreement; (4) Disputes or Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (5) Disputes or Claims that may arise after the termination of your use of the Services.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). Notice to us must be sent to our customer service address at: GlocalCircles.com; Dispute Resolution, Glocal Circles, LLC., The Notice must include: (1) the nature and basis of your Dispute or Claim; (2) identification or enclosure of all relevant documents and information; and (3) a description of the specific relief that you seek from us.
B. Providing Us an Opportunity to Informally Resolve Your Dispute. Before you may pursue or participate in any Dispute or Claim (or raise such Dispute or Claim as a defense) in small claims court or in arbitration against us, you must first send the Notice described above, and you must allow us a reasonable opportunity to resolve your Dispute or Claim. After we receive your Notice, the parties agree to negotiate in good faith with each other to try to resolve your Dispute or Claim.
You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Glocal Circles, LLC. exclusively in the U.S. District Court for the Texas state court, and you agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims. The laws of the State of Texas will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.
If anyone brings a claim against us related to your actions, content or information on Glocal Circles, LLC., you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim. Although we provide rules for user conduct, we do not control or direct users' actions on Glocal Circles, LLC. and are not responsible for the content or information users transmit or share on Glocal Circles, LLC.. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Glocal Circles, LLC.. We are not responsible for the conduct, whether online or offline, of any user of Glocal Circles, LLC..
WE TRY TO KEEP GLOCAL CIRCLES, LLC. UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. WE ARE PROVIDING GLOCAL CIRCLES, LLC. AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT GLOCAL CIRCLES, LLC. WILL ALWAYS BE SAFE, SECURE OR ERROR-FREE OR THAT GLOCAL CIRCLES, LLC. WILL ALWAYS FUNCTION WITHOUT DISRUPTIONS, DELAYS OR IMPERFECTIONS. GLOCAL CIRCLES, LLC. IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
YOU AND WE AGREE THAT:
ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION. NEITHER PARTY SHALL BE A MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY'S INDIVIDUAL DISPUTE OR CLAIM. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S DISPUTES OR CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. WE DO NOT CONSENT TO CLASS ARBITRATION. ACCORDINGLY, IF A COURT REFUSES TO ENFORCE THE ABOVE PROVISIONS REGARDING CLASS OR REPRESENTATIVE ACTIONS, THEN THIS AGREEMENT TO ARBITRATE SHALL BE UNENFORCEABLE AS TO YOU. WHETHER A DISPUTE OR CLAIM PROCEEDS IN COURT OR IN ARBITRATION, THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL.
You and we agree to arbitrate all disputes and claims between us except for claims seeking injunctive relief in connection with our intellectual property. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); (iii) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (iv) claims that may arise after the termination of this Agreement.
You agree that, by entering into this Agreement, you and we are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless we and you agree otherwise, any arbitration hearings will take place in Austin, Texas. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The payment of arbitration fees will be governed by the AAA rules.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
Choice of Law; Jurisdiction
This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. To the extent the above arbitration provisions are inapplicable, invalid or unenforceable, you and we (i) consent to submit itself to the personal jurisdiction of any federal or state court located in the Travis County, Texas in the event any dispute arises out of this agreement or any of the transactions contemplated by this agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (iii) agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than a federal or state court sitting in Travis County, Texas.
Third Party Beneficiaries
You agree that our service providers, licensors, or others involved in creating or providing the App and Service are third party beneficiaries to this Agreement and may rely upon the provisions of this Agreement, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability.
D. Small Claims Court. You may choose to pursue your Dispute or Claim in small claims court rather than by arbitration if your Dispute or Claim qualifies for small claims court in a location where jurisdiction and venue over you and us is proper.
E. Governing Law. The AAA Rules, and any Dispute or Claim arising between the parties related in any way to the AAA Rules or the Service, including but not limited to any Dispute or Claim over billing, service, privacy, advertising or our communications with you, whether based on contract, tort, statute, or common law, will be governed by the laws of the state in which you reside (except that, if you reside outside of the United States, the laws of the State of Washington will govern), without regard to choice of law principles.
15. MISCELLANEOUS TERMS.
Our relationship is not one of agency or partnership and neither you nor we shall be deemed to be a partner, employee, fiduciary, agent or representative of the other by your use of the Services. You may not assign or transfer your rights to any third party. The terms and conditions in these Terms of Service are severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall still be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any other provisions. If we fail to enforce any provision of these Terms of Service it shall not constitute a waiver of such provision. These Terms of Service may be modified only by our posting of changes to these Terms of Service on the Website. Each time you access the Services, you will be deemed to have accepted any such changes in effect at the time of access. We may assign our rights and obligations under these Terms of Service. These Terms of Service will inure to the benefit of our successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms of Service, or to exercise any right thereunder, will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and will remain in full force and effect. These Terms of Service, the Additional Terms below, the attachments there to, and the documents incorporated by reference herein, constitute the entire understanding between us regarding your access to, license and use of the Services, and they supersede any prior agreements, statements or representations with respect to the same.