Terms of service
PLEASE BE ADVISED THAT THESE TERMS OF SERVICE CONTAIN PROVISIONS THAT GOVERN HOW YOU CAN BRING CLAIMS BETWEEN YOU AND THE COMPANY, INCLUDING THE ARBITRATION AGREEMENT BELOW. THESE TERMS OF SERVICE OUTLINE HOW SUCH CLAIMS ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THESE TERMS OF SERVICE. PLEASE REVIEW THE ARBITRATION AGREEMENT HEREIN CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH THE COMPANY ON AN INDIVIDUAL BASIS AND, WITH LIMITED EXCEPTIONS, THROUGH FINAL AND BINDING ARBITRATION. YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
FINALLY, PLEASE BE ADVISED THAT SHOULD YOU HAVE AN OFFLINE WRITTEN OR ORAL AGREEMENT WITH THE COMPANY, THESE TERMS OF SERVICE SHALL GOVERN IN THE EVENT OF A DIFFERENCE OR DISCREPANCY IN LEGAL TERMS.
This Agreement is effective (“Effective Date”) on the date you first access or use the Services and/or the Website, whichever is earlier. Company may amend this Agreement related to its Services from time to time. Amendments will be effective upon the posting of such updated Terms of Service at this location. Your continued access or use of the Services after such posting constitutes your consent to be bound by the operative Terms of Service.
Agreement to use the Platform
The following provisions govern the use of the Company’s Website, Platform, and/or Services: (1) You understand and intend that this Agreement is a legally binding agreement and the equivalent of a signed, written contract; (2) You will use Company’s Website, Platform, and/or Services in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by the Company from time to time; and (3) You understand, accept, and have received this Agreement and its terms and conditions, and acknowledge and demonstrate that you can access this Agreement
The Company’s License to You
The Company grants you a single, non-exclusive, non-transferable and limited personal license to access and use Company’s Platform. This license is conditioned on your continued compliance with the terms and conditions in this Agreement. If you do not agree with the terms and conditions in this Agreement, please discontinue all further use of the Services. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense Company’s Platform, Website, and/or Services. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works relating to Company’s Platform, Services, and/or Website, inclusive of any AI technology, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components).
Your License to the Company
Any communications or material of any kind that you email, post, or otherwise transmit to the Company, including data, questions, comments, or suggestions (your “Communications”) will become the property of the Company. You hereby grant a license to the Company to use any ideas, concepts, know-how, or techniques contained in your Communications for any purpose including, but not limited to, developing and marketing products using such information.
You agree to be bound by any affirmance, assent, or agreement you transmit to the Company, including but not limited to any consent you give to receive communications from the Company solely through electronic transmission. You agree that, when in the future you click on an “I agree,” “I consent” or other similarly worded “button” or entry field, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
In addition to all provisions set forth elsewhere in the Terms of Service, the following requirements apply to your use of the Services:
You will not collect or store personal data about other individual users (“Users”) of the Services or Website.
You will not use the Services for any commercial purpose not expressly approved by the Company in writing.
You will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes.
If you offer, advertise, or display your goods or services via the Company’s Platform, whether or not the actual transaction takes place through Company (“Seller Users”), you agree to not misrepresent your goods or services offered or otherwise provide false information in connection to your use of Company’s website or Platform, including to other users.
You agree there is no relationship of employment, agency, or partnership between you and the Company, absent a separate written agreement.
Users may connect with Seller Users through the use of Company’s technology, including its Website, Platform, and/or AI chat function. In using Company’s Services, you acknowledge and accept that Company merely provides Users with the technical infrastructure to facilitate connections between its users, but Company does not control, monitor, moderate or inspect the products or services exchanged by Users of the Company’s Platform. Company makes no representations or warranties regarding the products or services made available by third party Users of its Platform. As such, the Company encourages its Users to exercise independent judgment relating to Seller Users and read the information provided by Seller Users about the terms of sale, characteristics, and technical specifications of the product or services offered by the Seller User.
Company is not a party to any agreements made between its users. In using Company’s Services, you agree Company bears no liability in connection with agreements made between its users, including products or services offered by Seller Users. Company does makes no representations or warranties about any of its users’ legal capacity or ability to complete a transaction and pay associated costs. All Users agree they are solely responsible for any offers or purchases made by them with other Users of Akin’s Services, including any obligations resulting therefrom. Company does not intermediate, moderate, promote or intervene in interactions, agreements or transactions between its Users and therefore bears no liability for any such interactions among its users, including the performance of any users’ obligations.
Security of Data Transmission and Storage
Electronic communications may not always be encrypted. You acknowledge that there is a risk that data, including email, electronic communications, and personal data, may be accessed by unauthorized third parties when communicated between you and the Company or between you and other parties. Company and its affiliates, and agents are permitted, but not obligated, to review or retain your Communications. The Company may monitor your Communications to evaluate the quality of service you receive, your compliance with these Terms, the security of the Services offered to ensure compliance with existing laws or regulations, or as necessary to investigate or resolve a complaint, dispute or conflict. You agree that such monitoring activities will not entitle you to any cause of action or other right with respect to the manner in which the Company or its affiliates or agents monitor your Communications and enforces or fails to enforce the terms of the Agreement. In no event will the Company or any of its affiliates or agents be liable for any costs, damages, expenses, or any other liabilities incurred by you as a result of monitoring activities by the Company or its affiliates or agents.
Company may provide links to other sites via its Website, Platform, or through its AI chat services. The Company does not control such other sites, and the Company and its affiliates and agents make no representations whatsoever concerning the content, accuracy, security or privacy of those sites. The fact that the Company has provided a link to a site is not an endorsement, authorization, sponsorship, or affiliation with respect to such site, its owners or its providers. There are risks in using any information, software, or products found on the Internet, and the Company cautions you to make sure you understand these risks before retrieving, using, relying upon, or purchasing anything via the Internet. You agree that under no circumstances will you hold the Company or its affiliates or agents liable for any loss or damage caused by use of or reliance on any content, goods, or services available on other sites.
The Company’s Website, Platform, and Services and all rights therein are and shall remain the property of the Company or its licensors and is protected by United States copyright and trade secret laws and international treaty provisions. All trademarks, services marks, trade names, logos, and icons are proprietary to the Company or its affiliates or agents. Nothing in these Terms nor your use of the Services convey or grant to you any rights in or related to the Services except for the limited use license granted herein. Nothing contained in Company’s Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark without the written permission of the Company or such third party that may own such trademarks. Your use of the trademarks displayed on Company’s Website or via the content provided by its Services, except as provided herein, is strictly prohibited. You are prohibited from using or authorizing the use of these images unless specifically permitted under the Agreement. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes.
The Company uses automatic renewal subscriptions for its Services. Information about the a) renewal period, b) termination details and c) termination notice can be found in the relevant section of these Terms. Upon notice to you, the Company may increase any fees specified in connection with its Services. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement.
Unless otherwise stated, these Terms also apply to transactions as between Company’s Platform users.
You may pay by credit card by way of the Company’s Third-Party Payment Processors. You agree that you have read and agreed to the Third-Party Payment Processors’ Privacy Policies and Terms of Service located on each of their websites, and you agree not to file a credit or debit card chargeback with regard to any amount of fees charged in connection with the Services. Instead, you agree to abide by the dispute resolution procedures outlined herein, below.
You are solely and entirely responsible for maintaining the confidentiality of your Account, and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. Furthermore, you are solely and entirely responsible for any and all activities that occur under your Account, including any charges incurred relating to Company’s Services for any charges to Seller Users, whether or not the actual transaction takes place through Company.
The Company is not liable for any harm caused by or related to the theft of your Account, your disclosure of your Account, or your authorization to allow another person to access or use the Services using your Account. You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Services and/or the Website cannot be guaranteed in the event of breach.
Links to Third-Party Accounts
You represent that you own and are entitled to disclose your Third Party Account login information to the Company and/or grant the Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account. The Company will not pay any fees or be subject to any usage limitations imposed by such third party service providers.
By granting the Company access to any Third Party Accounts, you understand that (i) the Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the "SNS Content") so that it is available on and through the Services via your Account, including without limitation any friend lists, and (ii) the Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your Account with the Third Party Account. Please note that if a Third Party Account or associated service becomes unavailable or the Company's access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Services.
Depending on the Third Party Accounts you choose to link with the Website, and subject to the privacy settings that you have set in the Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your Account on the Website. Depending on your privacy settings, the Company may access your contacts associated with a Third Party Account, solely for the purposes of identifying and informing you of those contacts who have also registered to use the Services and/or Website, unless you expressly tell us not to do so in writing.
Finally, you will have the ability to disable the connection between your Account and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. The Company makes no effort to review SNS Content by any Third Party Accounts for any purpose, including but not limited to, for accuracy, legality or non-infringement, and the Company is not responsible for any SNS Content by Third Party Accounts.
You may use the Services and/or Website only for lawful purposes and in accordance with these Terms of Services. You agree not to use the Services and/or Website:
Access or use the content in order to build a similar or competitive service or product.
In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services and/or Website, or which, as determined by us, may harm the Company or Users of the Services and/or Website, or expose them to liability.
Use the Services and/or Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.
Use any robot, spider, or other automatic device, process, or means to access the Services and/or Website for any purpose, including monitoring or copying any of the material on the Website.
Use any manual process to monitor or copy any of the material on the Services and/or Website, or for any other purpose not expressly authorized in these Terms of Services, without our prior written consent.
Use any device, software, or routine that interferes with the proper working of the Services and/or Website.
Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Services and/or Website.
Attack the Services and/or Website via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise attempt to interfere with the proper working of the Website.
The Company reserves the right, in its sole discretion, to terminate your limited use license for Company’s Services if you violate these Terms of Service or for any reason or no reason at any time, including the suspension of your access to Website, and your Account if you: (a) have violated the terms of these Terms of Service, any other agreement you have with the Company; (b) pose an unacceptable credit or fraud risk to us or Users; (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct; or (d) for any other reason in the Company's sole discretion.
However, we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services. Any termination of these Terms of Service does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us, and you agree to hold Company harmless from and against any damages, claims, or liability arising from your loss of access to Company’s Services in the event of your rights to such Services are suspended or terminated, as provided herein.
Users of the Services will be required to provide their credit card or bank account details to the Company vis a vis its Third-Party Payment Processors to process payment(s). The Company collects, analyzes and relays information to allow the Third Party Service Providers to process these payment(s).
You authorize us to process payment(s) for the Services, using the payment information you have supplied. Specifically, you will be required to provide your credit card or bank account details to the Company and/or the Third-Party Payment Processors to process payment(s) for the Services. You agree to provide the Company and/or the Third-Party Payment Processors with accurate and complete information about you and/or your business; and you authorize the Company to share it and any transaction information related to your use of the Services and/or Website with the Third-Party Payment Processors for the purpose of processing payment(s), including but not limited to the service fees owed to Company for the use of the Service.
The Company reserves the right, in its sole discretion (but not the obligation), to: (i) place on hold any payment and out of pocket expenses; and/or (ii) refund, provide credits or arrange for the third-party service provider to do so, as necessary.
If you believe a payment has been processed in error, you must provide written notice to the Company and the relevant Third-Party Payment Processor within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by the Company and the relevant Third-Party Payment Processor within such a thirty (30) day period, the payment will be deemed final and valid.
The Company is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by any User that are deceptive, fraudulent or otherwise invalid. By using the Services, you hereby release the Company from any liability arising from fraudulent actions. You will also use best efforts to promptly notify the Company of any fraudulent actions which may affect the Services. The Company reserves the right, in its sole discretion, to terminate the account of any User that engages in, or enables any other User to engage in, fraudulent actions.
While the Company takes what it believes to be reasonable efforts to ensure secure transmission of your information to Third-Party Payment Processors the Company is not responsible for any fees or charges assessed by the relevant Third-Party Payment Processors it may use to do business online, or any errors in the processing of payment(s) by Third-Party Payment Processors including any errors that result from third-party negligence, improper transmission of payment information, your mistaken submission of payment information, or your submission of erroneous payment information. Your sole recourse is with the relevant Third-Party Payment Processor which processed the payment(s).
Links to Other Websites
Links to this Website
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website and/or Services, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with the Company or cause any other confusion, and (c) the links and the content on your website do not portray the Company or its products or Services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to the Company. The Company reserves the right to suspend or prohibit linking to the Website and/or Services for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
Intellectual Property Rights
In addition, any trademarks, service marks and logos associated with a third party offering may be the property of the third-party provider, and you should consult with their trademark guidelines before using any of their marks.
Any information and data that you submit to the Website or in connection with the Services must not violate the intellectual property rights of third parties.
No Submission of Unsolicited Ideas and/or Materials
In your communications with the Company, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, "Unsolicited Ideas and Materials"). Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User Content and licensed to us as set forth below. In addition, the Company retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. The Company’s receipt of your Unsolicited Ideas and Materials is not an admission by the Company of their novelty, priority, or originality, and it does not impair the Company’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
The Company will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act ("DMCA"), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner's) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: "DMCA Copyright Infringement Notice";
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);
(iv) your full name, address, telephone number, and e-mail address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
The Company will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses set forth in the “Notice” section of this Agreement.
It is often difficult to determine if your copyright has been infringed. The Company may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and the Company may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification. Without limiting the Company's other rights, the Company may, in appropriate circumstances, terminate a repeat infringer's access to the Services, Website, and/or any other website owned or operated by the Company.
If access on to the Company’s Services to a work that you submitted to the Company is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: "DMCA Counter-Notification";
(ii) a description 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 (please include the URL of the Website from which the material was removed or access to it disabled);
(iii) 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;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
Data Ownership and Usage
You may provide your content to the Services to receive content generated by the Services based on your content (“Generated Content”). You will retain ownership of all Generated Content, subject to applicable law. Company assigns to you all of its right, title, and interest in and to Generated Content, as long as you comply with the terms of this Agreement.
The Company may use the Generated Content to provide and maintain the Services, as well as to comply with applicable law and enforce Company policies. However, you are solely responsible for the Generated Content, including ensuring that it does not violate any applicable laws or the terms of this Agreement.
You are solely responsible for resolving disputes regarding ownership or access to your data, including those involving any current or former owners, co-owners, employees or contractors of your business. You acknowledge and agree that the Company has no obligation whatsoever to resolve or intervene in such disputes.
The Health Insurance Portability and Accountability Act (“HIPAA”) imposes rules to protect certain personal health information. You should not share any protected health information, or any information that relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual. The Services and this Website are not intended to be used to communicate protected health information, nor comply with HIPAA. If you do share any protected health information, you do so at your own risk.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR THIS WEBSITE OR WITH RESPECT TO PRODUCTS OR SERVICES OFFERED BY COMPANY’S THIRD PARTY PLATFORM USERS.
THE COMPANY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES AND/OR THIS WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES, PLATFORM, AND/OR WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “COMPANY PARTIES”).
You agree to indemnify, defend, and hold harmless the Company and its subsidiaries, affiliates, officers, directors, agents, co-branders, partners and employees from and against any and all third party claims, lawsuits, and liabilities alleged or asserted against any of the Company or its employees, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach of any provisions of this Agreement; (b) any actual or alleged violation by you, an affiliate, or end user of the intellectual property, copyright, trade secret, privacy or other rights of the Company or a third party; (c) any dispute between you and another party regarding ownership of or access to your data or the data uploaded by you to Company’s system or Personal Information submitted to the Company; and (d) any dispute between you and any third party arising from your actual or alleged wrongful acts or omissions made in connection to your use of Company’s Platform, Website, and/or Services
THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY THE COMPANY’S THIRD-PARTY PAYMENT PROCESSORS, AS DEFINED HEREIN. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID PRECEDING THE DATE OF THE INCIDENT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH THE COMPANY AND THE COMPANY PARTIES.
IN NO EVENT WILL THE COMPANY HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE COMPANY, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS RELATED TO OR ARISING FROM USE OF THE SERVICES. YOU HEREBY RELEASE AND FOREVER DISCHARGE THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER USER, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF SERVICES OR OTHERWISE.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Choice of Law
These Terms of Service, including their enforceability and construction, and the relationship between you and the Company shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.
Informal Dispute Resolution. We want to address your concerns without needing a formal legal case. Before filing a claim against the Company, you agree to make a good faith attempt to resolve the dispute informally before taking formal legal action against the Company. Notice of such claims or disputes should be submitted via email to firstname.lastname@example.org. Upon receipt of notice of such claim or dispute, Company agrees to engage in informal dispute resolutions within 15 days of its receipt of written notice of the claim or dispute. If a dispute is not resolved within 15 days after submission, you may bring a formal proceeding.
We Both Agree To Arbitrate. You and the Company agree to resolve any disputes through final and binding arbitration on an individual basis, except as set forth under “Exceptions to Agreement” to Arbitrate below.
Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by contacting email@example.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement.
Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in Los Angeles, California, or any other location we agree to.
Arbitration Fees. The AAA rules will govern payment of all arbitration fees. The Company will pay all arbitration fees for claims less than $75,000. The Company will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate. Either you or the Company may assert claims, if they qualify, in small claims court in Los Angeles (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Company’s products or the Company Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions. You may only resolve Disputes with the Company on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under this Agreement.
Judicial Forum for Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and the Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Los Angeles County, California. Both you and the Company consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and the Company, absent a separate written agreement with the Company.
Severability. Should any provision of these Terms of Service be found invalid or unenforceable, the remaining terms shall still apply.
Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving the Company’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
Updated as of August 14, 2023