Last updated: February 1, 2019
These Terms of Use apply to chaicannabis.com (the “Site”). The Site is the property of Captor Capital (“the Company,” “Us,” “Our,” and/or “We”), and its affiliates, subsidiaries, parent company, and other related companies. The Company operates the Site, an online e-commerce platform for the sale, purchase, and delivery of cannabis and cannabis products from Company’s state and locally licensed commercial cannabis retailer to lawfully compliant Users (collectively, the “Services”). Certain features of the Site or Services may be subject to additional guidelines, terms, or rules, which will be posted on the Site or Services in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement. References to “you”, “your” and “User” refer to you, a user of our Site and/or Services.
THESE TERMS OF USE (“AGREEMENT”) SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND SERVICES. BY ACCESSING OR USING THE SITE OR SERVICES, YOU ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THE AGREEMENT IF YOU DO NOT HAVE THE CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE OR SERVICES. IF YOU ARE USING THE SITE OR SERVICES ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH COMPANY, ENTITY, OR ORGANIZATION WITH THE AUTHORITY TO BIND IT TO THIS AGREEMENT.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
1. IMPORTANT DISCLAIMERS
1.1 Acknowledgement of Federal Law: User expressly acknowledges that the Site and Service is for residents of the State of California only. You expressly acknowledge that you are familiar and assume full responsibility for cooperating with all laws regarding the use, possession and consumption of medical or recreational cannabis of the State of California and your local municipality. You are responsible for ensuring that your use of the Site and Services is compliant with all applicable laws and regulations, as well as any and all privacy policies, agreements, or other obligations you may maintain or enter into with applicable third-parties. User acknowledges that cannabis is included on Schedule I under the United States Controlled Substances Act. Under the federal laws of the United States of America use, possession and consumption of cannabis is illegal, and individuals are subject to arrest and/or prosecution by applicable federal enforcement agencies. User also acknowledges that the interstate transportation of cannabis is a federal offense.
1.2 California Use Only
The Site and the Service is controlled and operated by the Company from its licensed commercial cannabis retailer premises in the State of California. The Company makes no representation that any of the materials or the Service to which you have been given access are available or appropriate for use in other locations. Your use of or access to the Service should not be construed as Company’s purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
THE FOREGOING DISCLAIMERS AND LIMITATIONS ON LIABILITY SHALL NOT LIMIT THE MORE GENERAL DISCLAIMERS AND LIMITATIONS ON LIABILITY IN SECTIONS 9 AND 10 OR ELSEWHERE IN THIS AGREEMENT.
2. ELIGIBILITY, ACCOUNT
2.1. Eligibility. You must be either (i) at least 21 years of age or (ii) at least 18 years of age and hold a valid medical cannabis recommendation from a physician to use the Site and/or Services within the State of California and be able to demonstrate that you hold all documentation lawfully required to be a consumer of cannabis and cannabis products under applicable state and local cannabis laws.
2.2. Account Creation. In order to use certain features of the Site (e.g., to use the Services), you must (i) register for an account (“Account”) and provide certain information about yourself as prompted by the Site registration form. You may not create more than one Account. To use certain features of the Service, you must have Internet access and provide us with one or more Payment Methods. “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information at all times (c) you are the sole authorized user of your account (d) you will monitor your account to prevent use by minors, and you will accept full responsibility for any unauthorized use of your password or account by minors. If you provide any information that is untrue, inaccurate, not current, or incomplete, or the Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, the Company has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an account or use the Services if you have been previously removed by the Company, or if you have been previously banned from use of the Services.
2.3. Age Verification. In order to use the Services, the Company will require you to upload certain documents to verify your age and/or medical cannabis physician recommendation including but not limited to: (i) government issued ID and/or; (ii) Medical information regarding your medical marijuana recommendation (including the name and license number of your recommending physician, the contact information of the physician, the method to verify the recommendation’s authenticity, the expiration date of the recommendation, the recommendation verification number). You represent and warrant that any documents you upload to verify age and/or medical cannabis recommendation are truthful and accurate.
2.4. Billing
(A) Prices. You understand that: (a) the prices for menu items displayed through the Services may differ from the prices offered or published by other retailers or delivery services for the same menu items and/or from prices available at other third-party websites and that such prices may not be the lowest prices at which the menu items are sold; (b) the Company has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) the Company reserves the right to change such prices at any time, at its discretion. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on the Company’s income). Payment will be processed by the Company, using the preferred payment method designated in your account.
(B) Promotional Offers. The Company, at its sole discretion, may make promotional offers with different features and different rates to any of our Users. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. We encourage you to check back at our Website periodically if you are interested in learning more about how we charge for the Software or Services.
(C) Payment Methods. To use certain features of the Service you must provide one or more Payment Methods. You can update your Payment Methods by entering revised Payment Method information at [insert URL]. We may also update your Payment Methods using information provided by the payment service providers. Following any update, you authorize us to continue to charge the applicable Payment Method(s). You also authorize us to charge any Payment Method associated to your Account in case your primary Payment Method is declined or no longer available to us for payment. You remain responsible for any uncollected amounts. If a payment is not successfully settled due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your access to the Service until we have successfully charged a valid Payment Method.
(D) No Refunds. Charges paid by you for completed and delivered orders are final and non-refundable. The Company has no obligation to provide refunds or credits, but may grant them, in each case in Company’s sole discretion.
2.5 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3. SITE AND MOBILE APP
3.1 License. Subject to the terms of this Agreement, Company grants you a non-assignable, non-transferable, non-licensable, non-sublicensable, non-exclusive license to use the Site and Services for your personal and internal business use. Subject to the terms of this Agreement, Company grants you a non-assignable, non-transferable, non-licensable, non-sublicensable, non-exclusive license to install and use any product tracking software the Company may make available for mobile devices (“Mobile App”), in executable object code format only, solely on your own handheld mobile device and for your personal and internal business use. As used in this Agreement, the term “Services” includes the Mobile App.
3.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Any future release, update, or other addition to the functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof.
3.3 Modification. The Company reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that the Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof.
3.4 Ownership. Excluding User Content, you acknowledge that all the intellectual property rights in the Site and Services are owned by the Company or the Company’s licensors. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by the Company or its licensors, except for the licenses and rights expressly granted in this Agreement.
3.5 App Permissions. When you use our Mobile App, you may grant certain permissions to us for your device, as described when you install the Mobile App on your device.
3.6 App Platforms. You acknowledge and agree that the availability of the Mobile App is dependent on the third-party app platform from which you received the Mobile App, e.g., the Apple App Store® or the Google Play® Store (“App Platform”). You acknowledge that this Agreement is between you and the Company and not with the App Platform. The Company, not the App Platform, is solely responsible for the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Platform in connection with the Mobile App. Each App Platform may have its own terms and conditions to which you must agree before downloading the Mobile App from it. You agree to comply with, and your license to use the Mobile App is conditioned upon your compliance with, all applicable agreements, terms, and conditions of use/service, and other policies of the applicable App Platform. You acknowledge that the App Platform (and its subsidiaries) is a third-party beneficiary of this Agreement and will have the right to enforce this Agreement.
4. EMAIL COMMUNICATIONS
You agree that we may send you emails concerning our products and services, as well as those of third parties. You may opt-out of promotional emails by following the unsubscribe instructions in a promotional email.
5. USER CONTENT
5.1 User Content. As used herein, “User Content” means any and all information and content that a user submits to, or uses with, the Site or Services, including, without limitation, content in the user’s profile. The Company may provide you with interactive opportunities through the Services, including, by way of example, the ability to post User ratings and reviews. You acknowledge and agree that the Company is not responsible for any User Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. The Company does not assume and will not have any liability or responsibility to you or any other person or user for your use or misuse of any User Content.
5.2 User Content – Restrictions. You agree not to use the Site, Services, or any of the Company’s social media pages or channels to collect, upload, transmit, display, or distribute any User Content that (a) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third-party.
5.3 User Content – Your Responsibilities. You are solely responsible for your User Content. You assume all risks associated with the use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third-party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored, or endorsed by the Site or Company. You acknowledge and agree that We are not responsible for any User Content, including its accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any other person or user for your use or misuse of any User Content. Because you alone are responsible for your User Content (and not Company), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy or other applicable laws. Company is not obligated to backup any User Content and User Content may be deleted at any time. You are solely responsible for creating backup copies of your User Content, if you desire.
5.4 License. You hereby grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, nonexclusive, royalty-free, and fully-paid worldwide license to reproduce, distribute, publicly display, and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
5.5 Feedback. If you provide the Company any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to the Company all rights in the Feedback and agree that We shall have the right to use such Feedback and related information in any manner it deems appropriate. We will treat any Feedback you provide to Us as non-confidential and non-proprietary. You agree that you will not submit to the Company any information or ideas that you consider to be confidential or proprietary.
6. ACCEPTABLE USE POLICY. The following sets forth Company’s acceptable use policy (collectively, the “Acceptable Use Policy”):
6.1 Profile. You must have a valid Account to create a profile on the Site. Prior to posting a profile, you will need to verify the email address associated with your Account. In addition to the other restrictions contained in the Acceptable Use Policy, profiles posted on the Site or Services must not: (a) be written exclusively in capital letters; (b) be plagiarized; (c) contain links to external websites; (d) contain disparaging information about any person, (e) contain overly detailed or sexual descriptions of an individual’s physical appearance, or lewd personal attacks against a specific individual or group of individuals, (f) contain references to companies or competitors other than the company or product being described, or (g) contain information unrelated to your business or product.
6.2 Images. You agree not to use the Site or Services to post, upload, or otherwise transmit an image or video (collectively “Image”) of another person without that person’s consent. Image files must feature the products they illustrate. Image files must be clear and must not be blurry, fuzzy, or contain any flash reflections. Image files must contain an accurate depiction of the product they illustrate. Image files cannot contain pornography or other graphic images and must otherwise abide by the guidelines set forth in this Section 6. We reserve the right to set requirements and restrictions related to Images and remove Images at any time for any reason.
6.3 Technological Restrictions. In addition, you agree not to use the Site or Services to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather, or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies, or procedures of such networks; (e) attempt to or impersonate another user or Us or gain unauthorized access to the Site or Services, other computer systems, or networks connected to or used together with the Site or Services, through password mining or other means; (f) harass or interfere with another user’s use and enjoyment of the Site or Services; or (g) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests, and queries, or to strip, scrape, or mine data from the Site or Services.
6.4 Monitoring, Suspension, and Termination. We reserve the right (but have no obligation) to review any User Content (including any image files or profile content), investigate, and/or take appropriate action against you in our sole discretion (including removing or modifying your User Content, terminating your Account in accordance with Section 11, and/or reporting you to law enforcement authorities) if we in our sole discretion suspect that you have violated the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person.
7. INDEMNITY. You agree to indemnify and hold the Company (and its subsidiaries, affiliates, officers, employees, and agents) harmless from any and all losses, damages, liabilities, claims, actions, judgments, awards, penalties, fines, costs and/or expenses (including reasonable attorneys’ fees) arising from or relating to any claim or demand made by any third party due to or arising out of (i) your use or misuse of the Site or Services, (ii) your User Content, (iii) your violation of this Agreement; or (iv) your violation of applicable laws or regulations. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without Our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
8. THIRD-PARTY INTERACTIONS; THIRD-PARTY MATERIALS; DEALS; OTHER USERS; RELEASE.
8.1 Third-Party Interactions. During use of the Site or Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-party service providers showing their goods and/or services through the Service. In particular, the Company is not a party to any transaction that you may enter into with a third-party. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between you and the applicable third-party. The Company shall have no liability, obligation, or responsibility for any such correspondence, purchase, transaction, or promotion between you and any such third-party. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third-party you interact with through the Service.
8.2 Third-Party Materials. The Site or Services might display, include, or make available third-party content (including data, information, articles, applications, or other products, services and/or materials) services, and advertisements for third parties, including pricing and descriptions of products or services (collectively, “Third-Party Materials”). You acknowledge and agree that We are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or user for any Third-Party Materials. Third-Party Materials may be subject to their own terms and conditions of use and privacy policies and your use of Third-Party Materials will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that we do not endorse and are not responsible or liable for the behavior, features, or content of any Third-Party Materials. Third-Party Materials are provided solely as a convenience to you, and you use them entirely at your own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Material.
8.3 Deals. The Site or Services might display, include, or make available coupons, promotional codes, giveaways, samples, and other offers from listed companies (collectively, “Deals”). Deals constitute “Third Party Materials” under this Agreement. The Company displays these Deals on the Site and Services as a form of advertisement for the listing brand or product (the “Offeror”) only. All Deals are offered directly by the applicable Offeror, and may be subject to additional terms, conditions, or restrictions of the Offeror or under applicable law, whether or not such additional terms, conditions, or restrictions are expressly included on the Site or Services. The Offeror, and not the Company, is solely responsible for: (a) redemption of the Deal; (b) compliance of all aspects of the Deal with applicable law (including, without limit, the advertisement, redemption, and terms, conditions, and restrictions related thereto); (c) all goods and services it provides to you in connection with the Deal; and (d) all injuries, illnesses, damages, claims, liabilities, and costs it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of a Deal or not.
8.4 Other Users. Each user of the Site or Services is solely responsible for any and all of its User Content and Third-Party Materials. Because we do not control User Content and/or Third-Party Materials, you acknowledge and agree that we are not responsible for any User Content and/or Third-Party Materials, we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content and/or Third-Party Materials, and we assume no responsibility for any User Content and/or Third-Party Materials. Your interactions with other Site or Service users are solely between you and such user. You agree that the Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
8.5 Release. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish your rights with respect to, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users, Third-Party Interactions, or Third-Party Materials. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
9. DISCLAIMERS.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
10. LIMITATION ON LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID THE COMPANY IN THE PRIOR 6 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
11. TERM AND TERMINATION. Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Upon termination of this Agreement by Us, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account involves deletion of your User Content associated therewith from our Site, Services, and live databases. We will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content. Even after this Agreement or your Account is terminated, the following provisions of this Agreement will remain in effect: Sections 1,7,8.5, 10, and 13.
12. COPYRIGHT POLICY. We respect and adhere to copyright law and expect Users of the Site and Service to do the same. If you believe that any content on the Site infringes copyright, please notify us immediately.
13. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
13.1 Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. Arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
13.2 Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and the Company.
13.3 Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
13.4 Waiver of Class or Consolidated Actions. YOU AND THE COMPANY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 13.
13.5 Pre-Arbitration Dispute Resolution. We are always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at [insert email address]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to us should be sent to the address identified in Section 14.6 below.
13.6 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
13.7 Future Changes to Arbitration Agreement. Notwithstanding any provision in these Terms to the contrary, we agree that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Notice Address provided in the Section below. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
14. GENERAL
14.1 No Support or Maintenance. You acknowledge and agree that We will have no obligation to provide you with any support or maintenance in connection with the Site or Services.
14.2 Changes to Terms of Use. We may amend these Terms at any time in our sole discretion. If we do so, we will post the modified Terms on the Service. The modifications will be effective immediately following a notice to you. You agree to review these Terms periodically so that you are aware of any modifications. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
14.3 Copyright/Trademark Information. [insert Trademark/Copyright]. All rights reserved. You acknowledge and agree that You are not permitted to use any third-party marks displayed on our site without prior written consent from the owners of such third-party marks.
14.4 Accessing and Downloading the Application from Apple. The following additional terms apply to any Mobile App accessed through or downloaded from the iTunes® or the App Store® (“App Store Sourced Mobile App”):
(a) You acknowledge and agree that (i) this Agreement is concluded between you and the Company only, and not Apple, and (ii) that the Company, not Apple, is solely responsible for the App Store Sourced Mobile App and content thereof. The license granted to you in the Agreement to use the App Store Sourced Mobile App and Service is a non-transferable right to use the App Store Sourced Mobile App on any Apple Device that you own or control, and only as permitted by the Usage Rules set forth in the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Mobile App.
(c) In the event of any failure of the App Store Sourced Mobile App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Mobile App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Mobile App. As between the Company and Apple, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company.
(d) You and the Company acknowledge that, as between the Company and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store Sourced Mobile App or your possession and use of the App Store Sourced Mobile App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Mobile App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and the Company acknowledge that, in the event of any third-party claim that the App Store Sourced Mobile App or your possession and use of that App Store Sourced Mobile App infringes that third-party’s intellectual property rights, as between the Company and Apple, the Company, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and the Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Mobile App, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Mobile App against you as a third-party beneficiary thereof.
(g) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Mobile App.
14.5 Miscellaneous. This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision, nor shall any single or partial exercise by the Company of any right or power hereunder preclude further exercise of that or any other right hereunder. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation.” If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Nothing contained herein shall be construed to establish an employment, partnership, or joint venture relationship between you and the Company. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
