THESE TERMS OF SERVICE INCLUDE, AMONG OTHER THINGS, A BINDING ARBITRATION PROVISION THAT CONTAINS A CLASS ACTION WAIVER. PLEASE REFER TO SECTION 21 BELOW FOR MORE INFORMATION.
Freedom Partners, INC. (the “Company,” “we,” “us,” and “our”) offers a rewards program in the United States to help consumers save money. These Terms of Service (these “Terms”) govern your access to and use of (1) our website located at www.heropay.cash and all of our other websites to which these Terms are posted (collectively, the “Website”); (2) our mobile applications to which these Terms are posted (collectively, the “Application”); and (3) any services, content, and features made available by us through the Website or the Application (together with the Website and the Application, the “Services”). In these Terms, “you” and “your” refer to any user of the Services.
We may, without prior notice or liability to you, discontinue the Services or modify the Services by adding or removing features or functionalities, even though such changes may affect Hero Pay (as defined below) awarded to you. We may also revise these Terms from time to time in our sole discretion, subject to applicable law. When we revise these Terms, we will post a revised version on the Website and the Application. You are free to decide whether or not to accept a revised version of these Terms, but accepting these Terms, as revised, is required for your continued access to and use of the Services. If you do not agree to these Terms or any revised version of these Terms, your sole recourse is to terminate your access to and use of the Services. Except as otherwise expressly stated by us, your access to and use of the Services are subject to the version of these Terms in effect at the time of your access or use.
In connection with your access to or use of the Services, you may be subject to additional terms, rules, policies, and conditions imposed by us (“Additional Terms”), which are hereby incorporated by reference into these Terms. To the extent of any inconsistency between these Terms and any Additional Terms, these Terms will control, unless otherwise expressly provided by us.
We are conducting a limited confidential beta test to allow selected users to test the features, capabilities, and performance of the Services (the “Beta Test”).
BETA TEST OBLIGATIONS
You hereby agree to test, evaluate, and analyze the Services and provide feedback, suggestions, and comments about the Website, the Application, and the Services as reasonably requested by us (“Feedback”). You may also voluntarily provide Feedback to us. You agree that Feedback is deemed User Content (as defined below) and subject to Section 10 below.
YOU MAY NOT DISCLOSE THE EXISTENCE OF, OR YOUR PARTICIPATION IN, THE BETA TEST, AND YOU MAY NOT PUBLISH, DISCLOSE, DISTRIBUTE, TRANSMIT, POST, OR OTHERWISE MAKE AVAILABLE, DIRECTLY OR INDIRECTLY, IN ANY WAY, ANY CONFIDENTIAL INFORMATION (AS DEFINED BELOW), EXCEPT AS REQUIRED BY APPLICABLE LAW OR OTHERWISE EXPRESSLY PERMITTED BY US IN WRITING. You will use Confidential Information solely for the purpose of testing the Services as contemplated by, and pursuant to, these Terms and for no other purpose whatsoever. For purposes of these Terms, “Confidential Information” means any and all information relating to, contained in, or relayed through the Website or the Application or otherwise provided by us in connection with the Beta Test, including, but not limited to, information relating to the performance, capabilities, and contents of the Website, the Application, or the Services and Feedback provided by you or other Beta Test participants.
There are currently no fees for the Services, but we reserve the right to charge fees for the Services in the future. We will notify you before charging any fees for the Services by notifying you electronically, by posting such fees on the Website and Application, as applicable, or by any other method permitted by applicable law. If you continue accessing or using the Services after such notice, you must pay all applicable fees for the Services.
The purpose of the Services is to help you save money with minimal effort by rewarding you for certain qualifying purchases and other activities.
(a) Certain Requirements
You are solely responsible for ensuring the confidentiality of your Account login information and maintaining the security of such information. You agree not to authorize any other person to use your Account for any purpose. Except as otherwise provided by applicable law, you are solely responsible for all transactions and other activities authorized or performed using your Account, whether authorized by you or not. If you believe any of your Account credentials, such as your password, have been obtained or used by any unauthorized person or you become aware of any other breach or attempted breach of the security of the Services or your Account, you must notify us immediately by emailing us at firstname.lastname@example.org.
(b) Linking Your Payment Card
In order to receive rewards (“Hero Pay”) from us for qualifying purchases of goods or services, you must link at least one eligible debit or credit card to your Account (a “Payment Card”). Please note that not all debit and credit cards are eligible to be linked to your Account. All determinations as to whether a card is eligible to be a Payment Card are at our sole discretion. For example, certain Visa, MasterCard, and American Express cards are not eligible to be linked to your Account, including, but not limited to, the following: prepaid cards, corporate cards, purchasing cards, store cards which can only be used at their respective retailers’ stores, government-administered prepaid cards (including Electronic Benefit (EBT) cards), healthcare cards (including Health Savings Account (HSA) cards, Flexible Spending Account (FSA) cards, and insurance prepaid cards), Visa Buxx, and cards that are not processed through the Visa U.S.A payment system, the MasterCard payment system, or the American Express payment system. In order to be eligible as a Payment Card, it must be issued by a U.S. bank. In addition, you may not be able to link a debit or credit card to your Account if the card is already linked to certain other third-party card-linked offer programs.
(c) Use of Enrolled Cards and Transaction Information
Use your transaction data to confirm a Qualifying Purchase or return to match transactions to confirm whether you qualify for a statement credit or an Offer
May share transaction data with the participating merchant where a transaction occurred as needed for the merchant to confirm a specific transaction occurred or points should be awarded; for example, the date and amount of your purchase and the last 4 digits of your card number so the merchant can verify your purchase with its records if there is a missing or disputed transaction
May provide participating merchants or Third Party Service Providers aggregated and anonymized information relating specifically to registered card activity solely to allow participating merchants and Third Party Service Providers to assess the results of their campaign
Create a record of the transaction data and thereafter maintain and use data in connection with operating Hero Pay
Provide targeted offers that may be of interest to you Conducting analysis for the improvement and optimization of Hero Pay
May provide information in order to respond to a request from government authority or a payment organization involved in a transaction with you or a merchant.
You authorize the sharing, exchange and use of transaction data described above and herein by and among Hero Pay, Hero Pay and Empyr’s Third Party Service Providers, applicable Payment Card Networks and applicable Merchants.
(d) Receiving Hero Pay
Subject to these Terms, we will automatically provide Hero Pay to you when you purchase qualifying goods or services with your Payment Card or perform other qualifying actions identified by us. The Company, in its sole discretion, establishes the terms and conditions for each qualifying purchase or action and determines whether you have satisfied such terms and conditions to receive Hero Pay. Such terms and conditions are set forth on the Website and the Application and may be updated, modified, suspended, or cancelled by the Company at any time in its sole discretion.
Not all qualifying purchases made with your Payment Card may be eligible for Hero Pay if we are unable to obtain certain transaction information from the card network associated with your Payment Card (“Card Network”). For example, we may be unable to obtain certain transaction information from the Card Network (and you may therefore be unable to receive Hero Pay) for the following transactions made with your Payment Card: (i) purchases that require you to enter your Personal Identification Number (“PIN”) for your Payment Card, (ii) purchases you initiate through identification technology that substitutes for a PIN, (iii) payments made through other payment methods (such as a digital wallet or a third-party payment application, where you may choose your Payment Card as a funding source but you do not present your Payment Card directly to the merchant), (iv) payments of existing balances, balance transfers, or (v) transactions that are not processed or submitted through the Card Network. Do not use a PIN when paying for a qualifying purchase with your Payment Card if you want the purchase to be eligible for Hero Pay.
Without limiting any of the other terms of these Terms, if you return, charge back, cancel, dispute, or otherwise request a refund for a qualifying transaction for which you have already received Hero Pay, we will reduce the balance of Hero Pay in your Account by the amount of Hero Pay you received for such transaction. If the balance of Hero Pay in your Account is less than the amount of Hero Pay you received for such transaction, we will offset the applicable amount of Hero Pay from Hero Pay you would otherwise receive for future qualifying transactions.
Hero Pay that you receive will generally be reflected in your Account within one Business Day after completing a qualifying purchase or action, but in some cases, it may take longer for Hero Pay to be reflected in your Account. For purposes of these Terms, “Business Day” means Monday through Friday, excluding federal banking holidays. Without limiting any of the other terms of these Terms, if we award Hero Pay to you in error (e.g., we later determine that you did not comply with the terms and conditions of a qualifying purchase or if you charge back a qualifying purchase), we reserve the right to remove the applicable Hero Pay from your Account. You are responsible for making sure the Hero Pay balance reflected in your Account is correct. If you believe that your Account does not accurately reflect Hero Pay that you are eligible to receive, please contact us at email@example.com.
Hero Pay will remain in your Account until we approve redemption of Hero Pay as described below.
(e) Redeeming Hero Pay
Subject to these Terms and our approval, you may request that we redeem Hero Pay from your Account. Hero Pay may only be redeemed from your Account through the Website and the Application. We will generally redeem Hero Pay from your Account and credit your designated bank account, PayPal account, or other payment method permitted by us and designated by you (“Redemption Method”) within one Business Day of when we receive your redemption request.
By redeeming Hero Pay from your Account, you authorize us to electronically credit your Redemption Method for the applicable redemption amount. This authorization will remain in full force and effect until the termination of your Account or until you otherwise notify us by emailing us at firstname.lastname@example.org. You must notify us of any change in your Redemption Method at least three Business Day before any such change by emailing us at email@example.com or by updating your Account. If we do not receive notice at least three Business Days before any such change, we may attempt, in our sole discretion, to implement such change prior to any credit transaction performed hereunder. However, we assume no responsibility for our failure to do so.
You are solely responsible for verifying the accuracy and completeness of any credits to your Redemption Method performed by us hereunder. You must notify us of any errors within [15 days] of such information being made available to you. If you do not notify us of any such errors within such 15 days, you will forfeit the right to contest a transaction, except to the extent such forfeiture is prohibited by applicable law.
Certain limits may apply to your redemption of Hero Pay. For example, unless otherwise permitted by us, you may only redeem up to $500 in any day. Without limiting any of the other terms of these Terms, we may modify the redemption terms for Hero Pay at any time in our sole discretion.
All amounts paid to you hereunder are exclusive of any applicable withholding, sales, use, excise, value added, or other taxes. You acknowledge and agree that you are responsible for determining, paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services. We are not responsible for determining whether you owe taxes in connection with your access to or use of the Services or for collecting, reporting, or remitting taxes arising from your access to or use of the Services, except for our own income taxes. You agree to promptly and fully reimburse and indemnify us for any taxes, penalties, and interest assessed by any taxing authority regarding amounts owed by you in connection with these Terms.
Depending on applicable tax laws, your receipt of rewards may be subject to reporting to certain tax authorities. In accordance with such laws, we may be required to send to you and file certain forms with tax authorities, such as the IRS Form 1099-MISC (Miscellaneous Income), for any year in which rewards are issued to you. If we request information from you in order to complete a required tax form, and you fail to provide the requisite information, you will be prohibited from redeeming rewards from your Account until we receive the requested information.
(g) Additional Terms, Representations, and Requirements
You may only access and use the Services for your own personal, non-commercial use and not on behalf of or for the benefit of any third party. You may not use Hero Pay to make purchases, to transfer funds to third parties, or for any other purpose, except as expressly permitted by us. You acknowledge and agree that Hero Pay: (i) are issued solely by the Company and are not underwritten, funded, sponsored, or otherwise provided by any third party, including, but not limited to, our merchant, brand, or other clients or business partners; (ii) have no cash or other monetary value and do not act as a substitute for real currency; and (iii) are not redeemable or exchangeable for real currency or other monetary value from the Company or any other third party, except as expressly provided in these Terms or otherwise required by applicable law. By accessing or using the Services, you agree not to seek to redeem or otherwise claim Hero Pay from any third party, including, but not limited to, our merchant, brand, or other clients or business partners.
You further acknowledge and agree that: (i) the Company, in its sole discretion, may impose limits, terms, and conditions on Hero Pay, including, but not limited to, limits on the amount of Hero Pay that may be received and redeemed, and may adjust the Hero Pay balance in your Account; (ii) the Company is not a financial institution and does not provide banking or payment processing services; (iii) no consideration or other value is or has been given in exchange for Hero Pay; (iv) the Company is not a party to your Payment Card transactions; and (v) the Company is not responsible, and has no liability for, any products or services that are paid for with your Payment Card. You must resolve all disputes related to any products or services that are paid for with your Payment Card directly with the applicable merchant and/or the financial institution that issued your Payment Card.
You may not transfer, assign, sell, gift, exchange, trade, convert, lease, sublicense, rent, or distribute Hero Pay, except as expressly permitted by us and subject to applicable law. Any disposition or attempted disposition of Hero Pay in violation of these Terms will be void and will result in immediate termination of your Account. We do not recognize or condone any third-party service that may be used to sell, exchange, transfer, or otherwise dispose of Hero Pay, and we do not assume any responsibility for, and will not support, such transactions.
In addition to your other representations and warranties in these Terms, you represent and warrant that you will not access or use the Services to engage in any illegal, fraudulent, or other illicit activity. In order to redeem Hero Pay through the Services, you must provide such other information and documents as requested by us to verify your identity and compliance with these Terms, including, but not limited to, your representations and warranties herein. For our compliance purposes and in order to provide the Services to you, you hereby authorize us to, directly or through a third party, obtain, verify, and record information and documentation for purposes of verifying your identity and your Payment Card and Redemption Account information.
The Services may facilitate your purchase of third-party travel services, such as hotel reservations and car rental services (the “Travel Services”), from third-party suppliers (“Third-Party Suppliers”). Separate terms and conditions apply to the Travel Services. You should read these terms and conditions carefully before purchasing any Travel Services. By purchasing Travel Services through the Services, you agree to be bound by the terms and conditions of the Travel Services established by the applicable Third-Party Supplier and you authorize the applicable Third-Party Supplier to book the Travel Services on your behalf for the total reservation price, and you agree that your Payment Card will be charged by the applicable Third-Party Supplier for the total reservation price.
The price of the Travel Services will be as quoted on the Website and the Application from time to time, except in cases of obvious error. Third-Party Suppliers may change the availability, terms, and prices of the Travel Services at any time, but changes will not affect Travel Services already purchased, except as otherwise provided by the applicable Third-Party Supplier’s terms and conditions. Despite our best efforts, the availability, terms, and prices of the Travel Services listed on the Website and the Application may be incorrect. WE EXPRESSLY RESERVE THE RIGHT TO CORRECT ANY ERRORS ON THE WEBSITE AND THE APPLICATION. IN THE EVENT OF AN ERROR RELATED TO PENDING TRAVEL SERVICES PREVIOUSLY PURCHASED, THIRD-PARTY SUPPLIERS MAY OFFER YOU THE OPPORTUNITY TO KEEP YOUR PENDING TRAVEL SERVICES, IF AVAILABLE, AT THE CORRECT PRICE OR TO CANCEL YOUR TRAVEL SERVICES WITHOUT PENALTY. The Company and Third-Party Suppliers are under no obligation to provide the Travel Services to you at an incorrect (lower) price, even after you have been sent confirmation of your purchase of such Travel Services.
For any questions, comments, concerns, or other issues related to the Travel Services, you must contact the applicable Third-Party Supplier.
All right, title, and interest in and to the Services, including any updates, upgrades, and modifications thereto, and any associated patents, trademarks, copyrights, mask work rights, trade secrets, and other intellectual property rights, belong solely and exclusively to the Company and its licensors, and, except as expressly set forth in these Terms, we do not grant you any licenses or other rights, express or implied, to the Services.
You acknowledge and agree that the Services are protected by applicable copyright, trademark, and other intellectual property laws. All words and logos displayed in connection with the Services that are marked by the ™ or ® symbols are trademarks and service marks of the Company and/or their respective owners. The display of a third-party trademark in connection with the Services does not mean that we have any relationship with that third party or that such third party endorses the Services or the Company.
Subject to these Terms, we hereby grant you a limited, revocable, personal, non-exclusive, and non-transferable right and license to access and use the Services solely for your personal, non-commercial, entertainment purposes. Except as expressly provided by these Terms or as otherwise expressly permitted by us, you may not use, modify, disassemble, decompile, reverse engineer, reproduce, distribute, rent, sell, license, publish, display, download, transmit, or otherwise exploit the Services in any form by any means. Without limiting the foregoing, you agree not to (and not to allow any third party to): (a) use any robot, spider, scraper, or other automatic or manual device, process, or means to access or copy the Services; (b) take any action that imposes or may impose (in our sole determination) an unreasonable or a disproportionately large load on the Services or our infrastructure; (c) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Services; (d) rent, lease, copy, provide access to or sublicense any portion of the Services to a third party; (e) use any portion of the Services to provide, or incorporate any portion of the Services into, any product or service provided to a third party; (f) remove or obscure any proprietary or other notices contained in the Services; or (g) use the Services for any illegal or unauthorized purpose. We may, but are not obligated to, monitor your use of the Services.
Without limiting any of the other terms of these Terms and except as otherwise expressly permitted by us, you may not: (a) access or use any part of the Services for any commercial purpose; (b) access or use the Services for any illegal purpose; (c) attempt to gain unauthorized access to any other user’s Account; (d) modify or attempt to modify or in any way tamper with the Services; (e) access or use the Services in a way that may infringe upon the intellectual property or other rights of any third party, including, without limitation, trademark, copyright, privacy, or publicity rights; or (f) interfere with or disrupt networks connected to the Services or violate the regulations, policies, or procedures of such networks.
You hereby grant us a royalty-free, worldwide, perpetual, non-exclusive, unrestricted, irrevocable, transferable, and sub-licensable right and license to modify, copy, reproduce, distribute, sell, publicly display, transmit, delete, make derivative works from, store, and otherwise exploit User Content and to allow others to do the same for any purpose, including, but not limited to, commercial purposes. You acknowledge and agree that you will not receive any compensation whatsoever for granting us this license to your User Content, and you hereby completely and irrevocably waive any moral or similar rights you may have in your User Content, even if such User Content is altered or changed in a manner that is not agreeable to you. This includes, but is not limited to, any claims based on invasion of privacy, idea misappropriation, other civil rights violations, or defamation. The license granted under this Section, including the related waiver of any applicable moral rights, will survive any termination of these Terms.
You acknowledge and agree that your communications with other users via any channel of communication via the Services may be public and that you have no expectation of privacy concerning your access to and use of the Services. You are solely responsible for your communications through the Services and your interactions with other users of the Services.
(a) Reporting Claims of Copyright Infringement
We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Website or the Application infringe your copyright, you may request removal of those materials (or access to them) from the Website and the Application by submitting written notification to our Copyright Agent (designated below). In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following: (i) your physical or electronic signature; (ii) identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website and the Application, a representative list of such works; (iii) identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material; (iv) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (v) a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law; (vi) a statement that the information in the written notice is accurate; and (vii) a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated Copyright Agent to receive DMCA Notice is:
Freedom Partners, INC. www.heropay.cash
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Website or the Application is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
(b) Counter-Notification Procedures
If you believe that material you posted on the Website or the Application was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent (identified below). Pursuant to the DMCA, the Counter-Notice must include substantially the following: (i) your physical or electronic signature; (ii) an identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled; (iii) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (iv) a statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and (v) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website and the Application may be used) and that you will accept service from the person (or an agent of that person) who provided the complaint at issue.
Completed Counter-Notices should be sent to:
Freedom Partners, INC.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if ycou knowingly materially misrepresent that material or activity on the Website or the Application was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
It is our policy in appropriate circumstances to disable and/or terminate the Accounts of users who are repeat copyright infringers.
By providing your payment account information, including Payment Card and Redemption Method information, to us, you represent, warrant, and covenant that: (a) you are legally authorized to provide such information to us; (b) you are legally authorized to perform payments from, and accept payments to, the payment account; and (c) such action does not violate the terms and conditions applicable to your use of such payment account or applicable law. When you authorize a payment in connection with the Services, you represent, warrant, and covenant that there are sufficient funds or credit available to complete a payment using the designated payment method.
The information presented through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other user of the Services. The Services may include content provided by third parties, including content provided by other users of the Services. All statements and/or opinions expressed in such content (other than the content provided by the Company) are solely the opinions and the responsibility of the provider of the content and do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content provided by any third party.
The Services may contain links to third-party websites, applications, and services that are not owned or operated by us. The Services may also facilitate your purchase of third-party products and services, such as the Travel Services. We do not control, and are not responsible for, the Travel Services or any other third-party products, services, websites, or applications (collectively, “Third-Party Services”) or the Third-Party Suppliers or any other providers or sellers of Third-Party Services. Separate terms and conditions apply to Third-Party Services. You should read these terms and conditions carefully before accessing or purchasing any Third-Party Services. You are, among other things, responsible for all charges, fees, duties, taxes, and assessments in connection with your purchase of any Third-Party Services through the Services, except as otherwise provided by applicable law. You must resolve all disputes related to Third-Party Services with the applicable third party that provides and/or sells the Third-Party Services.
We may, in our sole discretion, suspend, limit, or terminate your Account and your access to and use of the Services, including the Hero Pay balance in your Account, at any time for any reason, without notice or liability to you, including, but not limited to, if we suspect that your access to or use of the Services violates these Terms or applicable law. You may stop using the Services and terminate your Account at any time by emailing us as firstname.lastname@example.org. Upon the termination of your Account, you must cease all use of the Services. Termination of your Account and your access to and use of the Services will not affect any of our rights or your obligations arising under these Terms prior to such termination. Provisions of these Terms that, by their nature, should survive termination of your Account and your access to and use of the Services will survive such termination.
You agree to indemnify, hold harmless, and (at our request) defend us, our affiliates, and our and their respective employees, officers, directors, and agents from and against all claims, demands, suits, damages, costs, lawsuits, fines, penalties, liabilities, and expenses, including reasonable attorneys’ fees, that arise from any third-party claim due to or arising out of: (a) User Content you share through the Services; (b) your use of the Services; (c) your breach or alleged breach of these Terms; (d) your violation of applicable law, including, but not limited to, infringement of third-party intellectual property rights; or (e) your other actions or omissions that result in liability to us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us under these Terms, and you agree to cooperate with our defense of these claims.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE THROUGH THE SERVICES ARE AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, WARRANTIES, EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; OR (E) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY OF OUR AUTHORIZED REPRESENTATIVES WILL CREATE ANY WARRANTY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. HOWEVER, ANY LIMITATION WILL BE CONSTRUED TO MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, AND OUR OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF THE SERVICES OR ANY INFORMATION, PRODUCTS, OR OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE THROUGH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN THE EVENT YOU OR ANY OTHER PERSON OR ENTITY IS ENTITLED TO DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS, USE, OR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY INFORMATION, PRODUCTS, OR OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE THROUGH THE SERVICES, THE COLLECTIVE LIABILITY OF THE COMPANY, OUR AFFILIATES, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS, (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL NOT EXCEED $100.
IN ADDITION TO AND WITHOUT LIMITING ANY OF THE FOREGOING, WE WILL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY CONDITION BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD, ACTS OF TERRORISM, LABOR CONDITIONS, POWER FAILURES, INTERNET DISTURBANCES, OR ANY SERVICES OR SYSTEMS CONTROLLED BY THIRD PARTIES.
THE LIMITATIONS IN THIS SECTION DO NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
We will send all notices and other communications regarding the Services to you at the email address or physical address you provided for your Account, as may be updated by you from time to time. You will be considered to have received a notice from us regarding the Services when we send it to the email address or physical address we have in our records for you or when we post such notice on the Website or the Application.
Except as otherwise provided in these Terms, all notices to us that are intended to have a legal effect must be delivered via email to email@example.com. All such notices are deemed effective upon documented receipt by us.
These Terms are governed by the laws of the State of Delaware, without giving effect to any principle that provide for the application of the law of another jurisdiction.
For any and all controversies, disputes, demands, claims, or causes of action between you and us (including the interpretation and scope of this Section and the arbitrability of the controversy, dispute, demand, claim, or cause of action) relating to the Services or these Terms (as well as any related or prior agreement that you may have had with us), you and we agree to resolve any such controversy, dispute, demand, claim, or cause of action exclusively through binding and confidential arbitration. In the event of any such controversy, dispute, demand, claim, or cause of action, the complaining party must notify the other party in writing thereof. Within 30 days of such notice, you and we agree to use reasonable efforts to attempt to resolve the dispute in good faith. If you and we do not resolve the dispute within 30 days after such notice, the complaining party may seek remedies exclusively through arbitration. Except as otherwise expressly provided by applicable law, the demand for arbitration must be made within a reasonable time after the controversy, dispute, demand, claim, or cause of action in question arose, and in any event within two years after the complaining party knew or should have known of the controversy, dispute, demand, claim, or cause of action.
The arbitration will take place in the federal judicial district of your residence. As used in this Section, “we” and “us” mean the Company and its subsidiaries, affiliates, predecessors, successors, and assigns and all of our and their respective employees, officers, directors, agents, and representatives. In addition, “we” and “us” include any third party providing any product, service, or benefit in connection with the Services or these Terms (as well as any related or prior agreement that you may have had with us) if such third party is named as a co-party with us in any controversy, dispute, demand, claim, or cause of action subject to this Section.
Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes. As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). You should review this Section carefully. To the maximum extent permitted by applicable law, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court in the state or municipality of your residence or as otherwise provided in the Rules and Procedures within the jurisdictional limits of the small claims court and as long as such matter is only pending in that court. Additionally, notwithstanding the agreement to arbitrate included in this Section, you and we may seek emergency equitable relief in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence in order to maintain the status quo pending arbitration, and you and we hereby agree to submit to the exclusive personal jurisdiction of the courts located within the federal judicial district of your residence for such purpose. A request for interim measures will not be deemed a waiver of the obligation to arbitrate.
Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY. You are entitled to a FAIR HEARING, BUT the arbitration procedures may be SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrators’ decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and we must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS; MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING; AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) we will pay as much of your filing and hearing fees in connection with the arbitration as required by the Rules and Procedures and/or as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (d) we also reserve the right, in our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of these Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law.
This Section will survive termination of these Terms as well as any voluntary payment of any debt in full by you or any bankruptcy by you or us. With the exception of subparts (A) and (B) of this Section (prohibiting arbitration on a class or collective basis), if any part of this Section is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this Section will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting part was not contained herein. If, however, either subpart (A) or (B) of this Section is found to be invalid, unenforceable, or illegal, then the entirety of this Section will be null and void, and neither you nor we will be entitled to arbitration. If for any reason a controversy, dispute, demand, claim, or cause of action proceeds in court rather than in arbitration, the controversy, dispute, demand, claim, or cause of action will be exclusively brought in federal court if it has jurisdiction or, if it does not, in a state court located in the federal judicial district of your residence.
If you wish to opt out of the agreement to arbitrate included in this Section, you must notify us of your election in writing within 30 days of the date that you first became subject to these Terms, or within 30 days of the effective date of any material change to these Terms, Attn: Arbitration Opt-Out. Your opt-out notice must include your name, address, phone number, and email address.
For more information on the AAA, the Rules and Procedures, and the process for filing an arbitration claim, you may call the AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
If you have any questions regarding these Terms or the Service, please contact us at firstname.lastname@example.org.