Last update: January 20, 2020
Effective: January 20, 2020
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
ACCEPTANCE OF THESE TERMS
PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY USING THE PLATFORM, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE PLATFORM.
All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein shall refer to that entity, its directors, officers, employees, and agents.
We reserve the right, in our sole discretion, to modify these Terms, and any other documents incorporated by reference herein, at any time and without prior notice. Your use of our services after the modification shall constitute your consent to the changes. If you do not agree, you may not access or use the Platform.
ADDITIONAL TERMS AND POLICIES
“Content” means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, quotes, message threads, reviews, courses, consultations, reviews of your personal situation, astrological information, scheduling and calendar information, and other information or materials available on or through the Platform.
“Member” means a person or entity who submits or receives a request through us, including but not limited to content and other Services provided by the Platform.
“Platform” means all our websites, mobile or other applications, software, processes and any other services provided by or through us.
“Services” means the services listed, quoted, scheduled, offered or provided by Service Members, or sought, scheduled or received by Members, through the Platform.
“Service Member” means Platform personnel who is to send quotes for Services, sends quotes for Services, or otherwise uses the Platform to offer, provide, receive payment for, or facilitate the provision of Services.
ELIGIBILITY TO USE THE PLATFORM
Access to and use of the Platform is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that you are eligible.
YOUR LICENSE TO USE THE PLATFORM
Subject to your compliance with these Terms, we grant you a limited, non-exclusive, revocable, nontransferable, and non-sublicensable license to reproduce and display Content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your access to and participation in the Platform. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Content, except as expressly permitted in these Terms. The Platform and Content are provided to you AS IS. If you download or print a copy of Content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by us or our licensors, except for the licenses and rights expressly granted in these Terms.
As a user of the Platform, you may not:
- In any manual or automated manner copy copyrighted text, or otherwise misuse or misappropriate Platform information or Content including but not limited to, for use on a mirrored, competitive, or third-party site;
- Transmit more request messages through the Platform in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser;
- Take any action that (a) may unreasonably encumber the Platform’s infrastructure; (b) interferes or attempts to interfere with the proper working of the Platform or any third-party participation; (c) bypasses measures that are used to prevent or restrict access to the Platform; (d) circumvents, disables or otherwise interferes with security features of the Platform; (e) distributes viruses or any other technologies that may harm the company or users; (f) uses the Platform in a way that violates any copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights; or (g) circumvents or manipulates Fee (defined herein) structure, billing, or Fees owed;
- Violate any key policies that govern your use of the Platform and our interactions with you and third parties;
- Take any action that may undermine the efficacy or accuracy of reviews or ratings systems.
THE COMPANY’S BUDGET, FEES, AND TAXES
You agree to pay all applicable Fees or charges based on the Fee and billing terms then in effect. Charges shall be made to the payment method designated at the time you accrue a Fee. If you do not pay on time or if we cannot charge a payment method for any reason, we reserves all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in our pursuit of payment. If any Fee is not paid in a timely manner, or we are unable to process your transaction using the payment method provided, we reserve the right to terminate or suspend your request and or service provided.
Taxes. Payments required by these Terms may be stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”). Certain jurisdictions, however, may require us to collect Taxes from you in connection with the purchase of, payment for, access to, or use of the Services, and you shall be responsible for and bear Taxes associated with the purchase of, payment for, access to, or use of the Services. Charges are inclusive of applicable Taxes where required by law. You hereby confirm that we can determine your appropriate jurisdiction for tax purposes however it deems appropriate or as required by law, and you agree to pay taxes to us when we include a charge for taxes on any invoice.
You may receive certain offers from us (“Promotions”), including but not limited to discounted or free use of the Services for a limited period. Any Promotions are offered at our discretion, and may be revoked at any time and for any reason.
INTELLECTUAL PROPERTY RIGHTS
Our Content and Services are protected by copyright, trademark, and other laws of the United States, foreign countries, and international conventions. Except as expressly provided in these Terms, we exclusively own all right, title, and interest in and to the Platform and our Content, including all associated intellectual property rights. All trademarks, service marks, logos, trade names and any other proprietary designations of our company used herein are trademarks or registered trademarks of our company. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective owners.
By sending us any feedback, comments, questions, or suggestions concerning our services, including the Platform (collectively, “Feedback”) you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against us and our users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of services provided to you.
We expect users to respect copyright law. In appropriate circumstances we will terminate the services of any user who repeatedly infringes or is believed to be repeatedly infringing the rights of copyright holders.
SANCTIONS FOR VIOLATIONS OF THESE TERMS
Without limiting any other rights reserved herein, we may, in our sole discretion, take any action permitted by law for any violation of these Terms or any other policy or agreement between you and us, including but not limited to limiting your access to services, blocking access to services, investigating you, and/or cooperating with law enforcement agencies in investigation or prosecution.
REFUND AND EXCHANGE POLICY
There are absolutely no refunds or exchanges after the completion of the purchase of Services.
ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and us agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with us as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach our support department at firstname.lastname@example.org. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the our support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
Where the relief sought is $8,000 or less and you do not wish to bring the claim in small claims court, the arbitration will be conducted online by an online arbitration provider of our choosing in accordance with their applicable Arbitration Rules & Procedures effective at the time a claim is made. Currently, to start, you may initiate arbitration proceedings on the FairClaims website. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
Where the relief sought is $8,001 or more, resolution shall be in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Arbitration will take place in Broward County, Florida. You and us further agree to submit to the personal jurisdiction of any federal or state court in Broward County, Florida in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND US AGREE THAT, SUBJECT TO OTHER PROVISIONS OF THIS AGREEMENT, EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Platform.
The Terms and the relationship between you and us shall be governed in all respects by the laws of the State of Florida, without regard to its conflict of law provisions. You agree that any claim or dispute you may have against us that is not subject to arbitration must be resolved by a court located in Broward County, Florida, or a United States District Court, Southern District of Florida, located in Fort Lauderdale, Florida, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within Broward County, Florida or the United States District Court, Southern District of Florida, located in Fort Lauderdale, Florida, for the purpose of litigating all such claims or disputes that are not subject to arbitration. You hereby waive any and all jurisdictional and venue defenses otherwise available.
YOUR USE OF THE PLATFORM, SERVICES, OR CONTENT SHALL BE SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM OR THE SERVICES OFFERED ON OR THROUGH THIS PLATFORM; AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE PLATFORM, INCLUDING WITHOUT LIMITATION ALL CONTENT. WE MAKE NO WARRANTY THAT THE PLATFORM OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. WE SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO, WHETHER ORAL OR WRITTEN, OBTAINED FROM US OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY OR GUARANTEE NOT EXPRESSLY MADE HEREIN.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM, SERVICES, AND COLLECTIVE CONTENT, OR REQUESTING OR RECEIVING SERVICES THROUGH THE PLATFORM REMAINS WITH YOU. NEITHER WE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM AND SERVICES WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (E) THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES OR CONTENT; (F) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE; (G) ANY PUNITIVE DAMAGES; OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM;
IN NO EVENT SHALL THE TOTAL, AGGREGATE LIABILITY OF US AND OUR AFFILIATES AND SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, PLATFORM, SERVICES, AND/OR CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR CONTENT OR IN CONNECTION WITH ANY SERVICES OR INTERACTIONS WITH ANY OTHER USERS EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO US BY YOU HEREUNDER, OR ONE HUNDRED US DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY AND NON-RESIDENTS OF THE US.
INDEMNIFICATION AND RELEASE
You agree to release, defend, indemnify, and hold us and our affiliates and subsidiaries, and their respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with (a) your violation of these Terms; (b) the request or receipt of Services by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with such Services.
No Third-Party Beneficiaries: You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Contacting You and E-SIGN Consent: You agree that we may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Platform. With your consent, we, Service Members, or other individuals may also contact you by telephone or through text messages.
Waiver: No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform or the Services offered therein must commence within one (1) year after the cause of action accrues, subject to all other provisions of this Agreement. Otherwise, such cause of action is permanently barred.
Section Headings: The section headings in these Terms are for convenience only and have no legal or contractual effect.
Contact Information: If you have any questions about these Terms or the Platform, please contact us by sending an email to email@example.com.