Terms of Service
Terms of Service
Last updated October 25, 2022
Welcome to the Terms of Service (these “Terms”) for the website, www.madrealities.xyz (the “Website”), operated on behalf of June Social, LTD. (“Company”, “we” or “us”). The Website and any content, tools, features and functionality offered on or through our Website are collectively referred to as the “Services”.
These Terms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
SECTION 9 CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. BY AGREEING TO THESE TERMS, YOU AGREE (A) TO RESOLVE ALL DISPUTES (WITH LIMITED EXCEPTION) RELATED TO THE COMPANY’S SERVICES AND/OR PRODUCTS THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND (B) TO WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS, AS SET FORTH BELOW. YOU HAVE THE RIGHT TO OPT-OUT OF THE ARBITRATION CLAUSE AND THE CLASS ACTION WAIVER AS EXPLAINED IN SECTION 9.
1. Who May Use the Services
You must be eighteen (18) years of age or older to use the Services. Minors under the age of majority in their jurisdiction but that are at least eighteen (18) years of age are only permitted to use the Services if the minor’s parent or guardian accepts these Terms on the minor’s behalf prior to use of the Services. Children under the age of eighteen (18) are not permitted to use the Services. By using the Services, you represent and warrant that you meet these requirements.
2. Defined Terms
Defined Terms. In addition to the terms used and defined throughout these Terms, the following capitalized terms will have the following meanings:
- Company NFT” means an NFT (as defined below) that is sold or otherwise transacted directly by or on behalf of Company, and that may be associated with certain Content (as defined below) made available by Company.
- “Content” means content, materials, art, design, and drawings (in any form or media, including, without limitation, video or photographs) offered by Company.
- “NFT” means a non-fungible token implemented on a blockchain using smart contracts,. The NFT is separate and distinct from the NFT-Linked Content or any other Third Party IP with which it may be linked or associated. An NFT is not a medium of exchange and is not convertible virtual currency.
- “NFT-Gated Content” means Content that is only accessible, through the Services or otherwise, to holders of a specific Company NFT.
- “NFT-Linked Content” means Content that is specifically associated with and/or linked to the specific Company NFT by inclusion of a reference (e.g., a hash or link) in the metadata of such Company NFT.
- “Third Party IP” means any third party copyrights, trade secrets, trademarks, know-how, patent rights or any other intellectual property rights recognized in any country or jurisdiction in the world.
3. How to Contact Us: You may contact us regarding the Services or these Terms at: 2850 Belmont Canyon Rd., Belmont, CA, USA, 94002, by phone at 917-810-3314 or by e-mail at email@example.com.
4. NFT Purchases and Payment
- Ownership of a Company NFT. We offer you the right to purchase or transact in certain Company NFTs via the Services. When you purchase a Company NFT from us or another lawful owner in a secondary sale, you own the NFT, but you do not possess any intellectual property rights in the NFT-Linked Content except for the license grants expressly set forth herein in Section 5.1 (“Scope of License”). Your purchase or other acquisition of a Company NFT is, in each instance, governed by these Terms and any terms and conditions specific to such Company NFT. As a result of the open-source nature of public blockchains, it is possible that there may be a fork, merge, or duplication of the underlying blockchain that has recorded ownership of your Company NFT. In such case, any rights granted under this Agreement to owners of any Company NFT will only be granted to the lawful owners of such Company NFT whose ownership is recorded on the mainnet version of the blockchain that is generally recognized and predominantly supported in the blockchain industry as the legitimate owner.
- Payment for Purchases. You acknowledge and agree that all information you provide with regards to a purchase of a Company NFT, is accurate, current and complete. When you purchase a Company NFT or other product or service via the Services (an “Offering”), you (a) agree to pay the price for such Offering as set forth in the applicable Service, any charges necessary to the fulfillment of the Offering, including any required gas fees, and all applicable taxes (which may include, without limitation, sales, use, value-added and other taxes, duties and assessments other than taxes on our net income) in connection with your purchase (the “Full Purchase Amount”), and (b) authorize us and/or a third-party platform or system that fulfills payments for Offering to charge your credit card (if applicable to your purchase) or other payment method for the Full Purchase Amount. For clarity, you may be required to agree to the third party platform or system’s terms and conditions and create an account in order to make a purchase. You acknowledge that with respect to Company NFTs, Company may impose a fee on any secondary sales of such Company NFT after its initial purchase, regardless of whether such secondary sale occurs on the NFT Platform or on some other platform, and such fee will be deducted from the proceeds from selling the Company NFT. 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. Orders will not be processed until payment has been received in full, and any holds on your account by any payment processor are solely your responsibility. Your order may be suspended or cancelled for any reason, including if the payment method cannot be verified, is invalid or is otherwise not acceptable.
- No Liability for Payments and Transactions. We have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transactions that you engage in via the Services, or any other payment or transactions that you conduct via the Services. Except as may be expressly provided in connection with the sale of a specific Company NFT, we do not provide refunds for any purchases that you might make on or through the Services or for Company NFTs (whether purchased through the Services or elsewhere).
- Purchases Made for Consumptive Use. You acknowledge and affirm that you are purchasing Company NFTs, whether through the Services or through a Third Party Platform (defined below), for purposes of acquiring digital collectibles and not for any investment or speculative purposes. Any economic benefit that may be derived from appreciation in the value of the Company NFT is incidental to obtaining it for its collectible purpose.
- Promotional Codes. We may offer certain promotional codes, referral codes, discount codes, coupon codes or similar offers (“Promotional Codes”) that may be redeemed for discounts on future Offerings, or other features or benefits related to the Services, subject to any additional terms that the Company establishes. You agree that Promotional Codes: (a) must be used in a lawful manner; (b) must be used for the intended audience and purpose; (c) may not be duplicated, sold or transferred in any manner, or made available by you to the general public (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted by the Company; (d) may be disabled or have additional conditions applied to them by the Company at any time for any reason without liability to the Company; (e) may only be used pursuant to the specific terms that the Company establishes for such Promotional Code; (f) are not valid for cash or other credits or points; and (g) may expire prior to your use.
- Changes and Pricing. The Company may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any Offerings. While we attempt to be as accurate as we can in our descriptions for the Offerings, we do not warrant that Offering descriptions are accurate, complete, reliable, current, or error-free. The inclusion of any Offerings for purchase through the Services at a particular time does not imply or warrant that the Offerings will be available at any other time. We reserve the right to change prices for Offerings displayed on the Services at any time, and to correct pricing errors that may inadvertently occur (and to cancel any orders in our sole discretion that were purchased with pricing errors). All such changes shall be effective immediately upon posting of such new Offering prices to the Services and/or upon making the customer aware of the pricing error.
- Non-Custodial Wallet. You may choose to associate a non-custodial wallet (by way of example, a MetaMask or Coinbase Wallet) (“Non-Custodial Wallet”) with your Account. Non-Custodial Wallets allow you to log into your Account and purchase, store and engage in transactions using the interface provided by the Services. Associating a Non-Custodial Wallet, or a specific type thereof (e.g., a MetaMask wallet) may be required as a condition to receiving a Company NFT, as provided in the specific terms and conditions of an individual drop. By using a Non-Custodial Wallet in connection with the Services, you agree that you are using such Non-Custodial Wallet under the terms and conditions of the applicable providers of such Non-Custodial Wallet. Non-Custodial Wallets are not associated with, maintained by, supported by, or affiliated with Company.
Company reserves the right to refuse to accept a Non-Custodial Wallet in its sole and exclusive discretion. Company accepts no responsibility or liability to you in connection with your use of a Non-Custodial Wallet, and makes no representations or warranties regarding how the Services will operate with any specific Non-Custodial Wallet. The private keys necessary to decrypt a Non-Custodial Wallet are held solely by you, and not by Company. Company has no ability to help you access or recover your private keys for your Non-Custodial Wallet, so please keep them in a safe place.
6. Rights We Grant You.
- Scope of License. If you purchase a Company NFT, then subject to your compliance with these Terms and any terms and conditions specific to such NFT, Company hereby grants you a worldwide, non-exclusive, non-transferable, royalty-free license to use, copy, and display the NFT-Linked Content for such purchased Company NFT, solely for the following purposes: (a) for your own personal, non-commercial use; (b) as part of a marketplace that permits the purchase and sale of your Company NFTs, provided that the marketplace cryptographically verifies each Company NFT’s owner’s rights to display the NFT-Linked Content for their Company NFT to ensure that only the actual owner can display such Content; or (c) as part of a third party website or application that permits the inclusion, involvement, or participation of your Company NFT, provided that the website/application cryptographically verifies each Company NFT’s owner’s rights to display the NFT-Linked Content for their Company NFT to ensure that only the actual owner can display the Content, and provided that the Content is no longer visible once the owner of the Company NFT leaves the website. This license only lasts as long as you are the valid owner and holder of the Company NFT associated with the licensed Content. If you sell or transfer the Company NFT to another person, this license will transfer to such other owner or holder of the Company NFT, and you will no longer have the benefits of such license. All rights not expressly granted are reserved. With respect to NFT-Gated Content, for so long as you own the applicable Company NFT that is required to access the NFT-Gated Content, Company hereby grants you a non-exclusive, non-transferable, royalty-free license to access and view NFT-Gated Content through your Account and solely within the Services solely for your personal use.
- Limitations on License. You agree that you may not, nor permit any third party to do or attempt to do any of the following without our (or, as applicable, our licensors’) express prior written consent in each case: (a) modify the Content in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (b) use the Content to advertise, market, or sell any third party product or service; (c) use the Content for any derogatory or defamatory purpose that creates harmful associations or a risk of harm, damage or liability to any of the Company Entities, e.g., in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (d) sell, distribute, copy, record, reproduce, archive, modify, broadcast, exploit or transmit for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), the Content or otherwise commercialize merchandise that includes, contains, or consists of the Content; (e) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Content; (f) create, sell or attempt to create or sell fractionalized interests in the Content or any Company NFT; or (g) otherwise utilize the Content for your or any third party’s commercial benefit.
- Right to Use Services. We hereby permit you to use the Services for your personal non-commercial use only, provided that you comply with these Terms in connection with all such use. If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Services, we hereby grant you, a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content and materials provided to you as part of the Services, in each case for the sole purpose of enabling you to use the Services as permitted by these Terms. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Company, in its sole discretion, may elect to take.
- Restrictions On Your Use of the Services. You may not do any of the following in connection with your use of the Services, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
- download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms;
- duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
- use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
- use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
- exploit the Services for any commercial purpose without our prior written consent, including without limitation communicating or facilitating any commercial advertisement or solicitation;
- access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
- attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, or the computer systems or networks connected to the Services;
- circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
- use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
- introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
- submit, transmit, display, perform, post or store any content that is inaccurate, unlawful, defamatory, obscene, lewd, lascivious, filthy, excessively violent, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, harmful, hateful, cruel or insensitive, deceptive, or otherwise objectionable, use the Services for illegal, harassing, bullying, unethical or disruptive purposes, or otherwise use the Services in a manner that is obscene, lewd, lascivious, filthy, excessively violent, harassing, harmful, hateful, cruel or insensitive, deceptive, threatening, abusive, inflammatory, pornographic, inciting, organizing, promoting or facilitating violence or criminal or harmful activities, defamatory, obscene or otherwise objectionable;
- violate any applicable law or regulation in connection with your access to or use of the Services; or
- access or use the Services in any way not expressly permitted by these Terms.
7. Ownership and Content
- Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works.
- Ownership of Trademarks. The Company’s name, trademarks, the Company’s logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
- Submissions. We acknowledge that you might provide us with feedback, comments, suggestions for improvements to the Services as well as ideas for various forms or content or similar products (collectively, “Submissions”). You acknowledge and expressly agree that by submitting any Submissions to the Company, you hereby grant to the Company a worldwide, royalty-free, fully paid-up, perpetual, sub-licensable, assignable, transferable, irrevocable license in and to any rights you may have in the Submissions, with the unrestricted right to use, sell, reproduce, distribute, transmit, create derivative works of, publicly display, and publicly perform any such Submissions by all means and in any media now known or hereafter developed or commercialized for any purpose whatsoever without further notice or compensation to you. In addition, you represent and warrant to us that you have the right to grant to us the foregoing license.
8. Third Party Services and Materials
- Use of Third Party Materials in the Services. Certain Services may display, include or make Content. If the Content contains Third Party IP (e.g., licensed intellectual property from any rights holder, such as music performance rights or publicity rights), you understand and agree as follows: (a) you will not have the right to use such Third Party IP in any way except as incorporated in the Content, and subject to the license and restrictions contained herein and in any applicable terms and conditions for the Company NFT; (b) depending on the nature of the license granted from the owner of the Third Party IP, we may need to (and reserve every right to) pass through additional restrictions on your ability to use the Content; (c) to the extent that we inform you of such additional restrictions, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained herein; (d) such third party owns and retains all right, title and interest in and to such Third Party IP except as expressly licensed hereunder; and (e) the licensor of such Third Party IP shall be a third-party beneficiary of (but not a party to), and entitled to enforce, these Terms against you with respect to such Third Party IP.
9. Disclaimers, Limitations of Liability and Indemnification
- Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (e) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.
- THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN SECTION 8.2 BELOW. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
- THE COMPANY ENTITIES TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES.
- YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH THE COMPANY ENTITIES WILL BE RESPONSIBLE FOR.
- You acknowledge and agree that there are risks associated with purchasing and holding NFTs and using blockchain technology. These include, but are not limited to, risk of losing access to Company NFTs due to loss of a PIN, wallet keys, two-factor authentication devices, or log-in information, custodial error or purchaser error, smart contract error, risk of mining or blockchain attacks, risk of hacking and security weaknesses, risk of unfavorable regulatory intervention in one or more jurisdictions, risks related to token taxation, risk of personal information disclosure, risk of uninsured losses, unanticipated risks, and volatility risks. The prices of collectible blockchain assets are extremely volatile and subjective and collectible blockchain assets have no inherent or intrinsic value. Each Company NFT has no inherent or intrinsic value. You acknowledge that you have obtained sufficient information to make an informed decision to purchase an NFT, including carefully reviewing the code of the smart contract and the NFT and fully understand and accept the functions of the same. The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Services, and therefore the potential utility or value of your Company NFTs. Upgrades to any blockchain network or hard forks in such networks, or a change in how transactions are confirmed on such blockchain networks may have unintended, adverse effects on all blockchains, including any that are related to your Company NFTs. Any purchase or sale you make, accept or facilitate outside of the Services of an NFT will be entirely at your own risk. Any use of a wallet will be entirely at your own risk. Except as may otherwise be provided in these Terms, we do not control or endorse purchases or sales of NFTs outside of the Services. You are solely responsible to pay any and all sales, use, value-added and other taxes, duties, and assessments (except taxes on our net income) now or hereafter claimed or imposed by any governmental authority associated with your use of the Services. Except for income taxes levied on us, you: (a) will be solely responsible for reporting any tax obligations when, if ever, such obligations arise as a result of your use of the Services or in relation to a Company NFT; (b) will pay or reimburse Company for all national, federal, state, local or other taxes and assessments of any jurisdiction, including value added taxes and other taxes as may be required, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction; and (c) will not be entitled to deduct the amount of any such taxes, duties or assessments from payments (including blockchain gas fees) made to us pursuant to these Terms. Neither these Terms nor any other communication from Company constitutes tax advice, and users are solely responsible for determining what, if any, taxes apply to their interaction with Company NFTs and the Services. We expressly deny and disclaim any liability to you and deny any obligation to indemnify you or hold you harmless for any losses you may incur by transacting, or facilitating transactions, in NFTs outside of the Services.
- Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR OFFERINGS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your misuse of the Services; (d) Your Content, or (e) your negligence or wilful misconduct. If you are obligated to indemnify any Company Entity hereunder, then you agree that Company (or, at its discretion, the applicable Company Entity) will have the right, in its sole discretion, to control any action or proceeding and to determine whether Company wishes to settle, and if so, on what terms, and you agree to fully cooperate with Company in the defense or settlement of such claim.
10. ARBITRATION AND CLASS ACTION WAIVER
- PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Informal Process First. You and the Company agree that in the event of any dispute between you and the Company Entities, either party will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action, after first allowing the receiving party thirty (30) days in which to respond. Both you and the Company agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
- Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to the Company’s services and/or products, including the Services, and any use or access or lack of access thereto, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Because your contract with the Company, these Terms, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration.
- Exceptions. Notwithstanding the foregoing, you and the Company agree that the following types of disputes will be resolved in a court of proper jurisdiction:
- disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual dispute and not as a class, representative, or consolidated action or proceeding;
- disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief); or
- intellectual property disputes.
- Costs of Arbitration. Payment of all filing, administration, and arbitrator costs and expenses will be governed by the JAMS Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, the Company will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below).
Fees and costs may be awarded as provided pursuant to applicable law. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS rules. In that case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that is less than the last written settlement amount offered by the Company before the arbitrator was appointed, the Company will pay you the amount it offered in settlement. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits
- Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to firstname.lastname@example.org or to the U.S. mailing address listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your first registering to use the Services or agreeing to these Terms; otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with these Terms. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
- WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS. To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve any dispute, claim, or controversy will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). You and the Company AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. You and the Company EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. If the dispute is subject to arbitration, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. Further, you and the Company agree that the ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. For the avoidance of doubt, however, you can seek public injunctive relief to the extent authorized by law and consistent with the Exceptions clause above.
IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.
11. Additional Provisions
- Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms. No amendment shall apply to a dispute for which an arbitration has been initiated prior to the change in Terms
- Termination of License. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
- Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
- California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
- Export Laws. You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
- Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the State of New York, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section 9, or if arbitration does not apply, then the state and federal courts located in the State of New York. You and the Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms. If you have any questions about these Terms or the Services, you can reach us at email@example.com.