- Acknowledgement and Acceptance of Terms
Dealmazing.com (“Company,” “we,” “us,” or “our”) owns and operates the website www.dealmazing.com (“Site”). The Site includes any other websites that we now or in the future have that reference these Terms of Service, including, but not limited to, any mobile versions. These Terms of Service govern your access and use of the Site and any products and services that we offer through the Site (together with the Site, the “Service”). By accessing or using the Service, you (“you” or “your”) are agreeing to these Terms of Service and entering into a binding legal contract with Company. If you do not agree to these Terms of Service, do not access or use the Service.
Certain parts of the Service may be subject to additional terms and conditions specified by us from time to time, and your use of the Service is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
- Changes to the Terms of Service
We reserve the right to change these Terms of Service from time to time without notice to you, so you should review this page periodically. You acknowledge and agree that it is your responsibility to review the Terms of Service periodically to learn of any modifications. Your continued use of the Service after the posting of any modifications shall constitute your agreement to be bound by such modified Terms of Service.
- Use of the Service
a. General. The Service provides a platform that makes available information about deals for products and services (“Deals”) offered by third parties (“Vendors”). Deals may include coupons, advertisements, or other offers for Vendor products and services.
b. Deals are Offered and Sold by Vendors. While Company may provide information about Deals to you on the Service, Vendors are the sellers and issuers of the Deals and are solely responsible to you for: (i) the quality and delivery of the products and services associated with Deals, (ii) the description of products and services associated with the Deals, and (iii) the fulfillment of any Deals. The terms and conditions of Deals, including refund and cancellation policies, are governed by the Vendor’s policies. Therefore, before you accept a Deal, it is important that you carefully read the description of the Deal and any instructions provided by the Vendor, including any additional terms and conditions set forth on the Vendor’s website. Please contact the Vendor directly for questions regarding the Deal or your transaction with Vendor. Vendors are solely responsible for any and all harm, injuries, illnesses, damages, claims, losses, costs, or liabilities that you to may suffer or incur, directly or indirectly, in full or in part, arising out of or related to the use or redemption of a Deal.
c. Affiliate Relationship with Certain Vendors. Company may have affiliate relationships with certain Vendors, and may receive compensation in connection with your purchase of Deals from those Vendors. You acknowledge and understand that Company is not in any way responsible for your transactions with Vendors and that Company is not a party to such transactions, even if we have an affiliate relationship with the Vendors. A portion of the compensation received by Company under this section may be donated by Company to one or more charitable organizations.
d. Eligibility. You represent and warrant that you are at least 18 years of age. If you are under age 18, then you may not, under any circumstances or for any reason, use the Service. We may, in our sole discretion, refuse to offer the Service to any person or entity and change the eligibility criteria for using the Service at any time. The right to access the Service is revoked where these Terms of Service or use of the Service is prohibited or to the extent offering, sale or provision of the Service conflicts with any applicable law, rule or regulation. Further, the Service is offered only for your use and not for the use or benefit of any third-party.
e. User Conduct. Your use of the Service is subject to your compliance with the terms and conditions set forth in these Terms of Service. You may not:
use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any manual process to access, acquire, copy or monitor any portion of the Service or any Company Content (as defined in Section 6 below) or obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service;
attempt to gain unauthorized access to any portion of the Service or any Company Content, or any systems or networks connected to the Service, by hacking, password “mining” or any other illegitimate means;
probe, scan or test the vulnerability of the Service or any Company Content, or any system or network connected to the Service;
reverse look-up or trace any information of any other user or visitor or otherwise use the Service for the purpose of obtaining information of any other user or visitor;
transmit spam, chain letters, or other unsolicited email;
use the Service for any commercial solicitation purposes;
take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
upload invalid data, viruses, worms, or other software agents through the Service;
impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity;
collect or harvest any personally identifiable information, including account names, from the Service;
use any device, software or process to interfere with, or attempt to interfere with, the proper working of the Service or any Company Content, or any systems or networks connected to the Service, or with any other person’s use of the Service;
post any fake or defamatory review, trade reviews with others, or compensate someone or be compensated to post, refrain from posting, or remove a review; or
use the Service or any Company Content for any purpose that is unlawful or prohibited by the Terms of Service.
Any unauthorized use of the Service or any Company Content may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
f. Availability. We use reasonable efforts to keep the Service available; however, the Service may be unavailable from time to time. You understand and agree that there may be interruptions to the Service due to circumstances both within our control (e.g., maintenance) and outside of our control.
g. Modification. We may make changes to the Service or discontinue the Service at our sole discretion, at any time, for any or no reason, and without notice or liability.
a. Registering for an Account. Certain features or services offered on or through the Service may require you to open an account (including a username, password, and payment information). Your account will give you access to the Service and functionality that we may establish and maintain from time to time and in our sole discretion. If you open an account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms of Service, and that you agree to these Terms of Service on the entity’s behalf. We reserve the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.
b. Your Responsibility for Your Account. You are responsible for taking all steps to ensure that there is no unauthorized access to your account or password. When creating your account, you must provide accurate and complete information. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. It is your sole responsibility to: (i) control the dissemination and use of your account and password and (ii) promptly inform us of any need to deactivate an account or password. We are not liable for any harm related to the theft of passwords or your disclosure of passwords. You shall immediately notify us of any unauthorized use of your account or password. You are solely responsible for any damage resulting from the use of your account and username. You may not use your account or password to breach security of another account.
d. Mobile Phone Information. By providing your mobile phone number and using the Service, you hereby affirmatively consent to our use of your mobile phone number for calls and texts in order to perform and improve upon the Service. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving text messages from us by modifying your account settings on the Site or by emailing firstname.lastname@example.org.
a. Company Content. Except for User Content and Third Party Materials (as those terms are defined below), all content and materials on the Service and the Service itself and all Intellectual Property Rights contained therein or related thereto, including, but not limited to, text, graphics, user and visual interfaces, photographs, trademarks, logos, sounds, music, artwork, applications, computer code and associated documentation (collectively, the “Company Content”), including but not limited to the design, structure, arrangement and “look and feel” of such Company Content, are owned by or licensed to us and our licensors and is protected by patent, copyright, trademark, trade secret, and other intellectual property laws. For the purposes of these Terms of Service, “Intellectual Property Rights” means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
Subject to the terms and conditions of these Terms of Service, Company grants you a limited, personal, nontransferable, nonexclusive, revocable license to use the Service and Company Content pursuant to these Terms of Service and to any additional terms and policies specified by us. Company may terminate this license at any time for any reason or no reason. You may not reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sell, or re-sell any part of the Service or the Company Content without the express permission of Company. Other than as provided herein, Company does not grant to you any license, express or implied, to the intellectual property of Company or its licensors.
b. User Content. We may now or in the future allow you to submit, post, display, or otherwise make available content through the Service such as, reviews, opinions, comments, files, images, photographs, video, sound recordings, and other information or material (“User Content”). You own all of your User Content. You grant us a non-exclusive, royalty-free, perpetual, transferable, sublicensable, worldwide license to use, modify, reproduce, display, distribute, and store your User Content on the Service for any purposes in connection with operating and providing the Service.
You are solely responsible for your User Content. You may not imply or suggest in any way that your User Content is sponsored or endorsed by Company. You agree that any User Content that you provide does not and will not violate any law or infringe any rights of any third party, including without limitation any Intellectual Property Rights, publicity rights, or rights of privacy. Please refer to Company’s Copyright Policy below. We reserve the right, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates these Terms of Service.
c. Company Not Responsible for User Content. We are not responsible for and do not necessarily hold the opinions expressed by our users and content contributors. Opinions and other statements expressed by users and third parties are theirs alone, not opinions of Company. Content created by users or third parties is the sole responsibility of such users or third parties and its accuracy and completeness are not endorsed or guaranteed by us. You acknowledge that by providing you with the ability to view and post content through our Service, Company is not undertaking any obligation or liability relating to the content. Company and its affiliates, successors, assigns, employees, agents, directors, officers and stockholder do not undertake or assume any duty to monitor our site for inappropriate or unlawful content. Company and its affiliates, successors, assigns, employees, agents, directors, officers and stockholders assume no responsibility or liability which may arise from the content, including, but not limited to, claims for defamation, libel, slander, infringement, invasion of privacy and publicity rights, obscenity, pornography, profanity, fraud, or misrepresentation. Notwithstanding the foregoing, Company reserves the right to block or remove communications, postings, or materials at any time in our sole discretion.
d. Third Party Content and Links. The Site may include third party content and links to third party websites (“Third Party Materials”). We do not recommend or endorse any Third Party Materials. We are not responsible for the Third Party Materials and we do not make any representations or warranties regarding their content or accuracy. Your use of the Third Party Materials is at your own risk and subject to the terms and conditions of use for such websites. You expressly release us from any and all liability arising from your use of any Third Party Materials.
e. Third Party Licensors. You acknowledge and agree that third party licensors may own certain proprietary information and Intellectual Property Rights included in the Service. Such third party licensors are third party beneficiaries entitled to enforce our rights and your obligations hereunder and to seek appropriate legal and equitable remedies, including but not limited to, damages and injunctive relief, for your breach of such obligations. Except as provided in this Section, there are no other third-party beneficiaries to this Agreement.
We are always looking for new ways to improve our Service. You may choose to submit comments, ideas, or feedback about the Service, including without limitation about how to improve the Service (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation. You agree that we shall be free to use, disclose, reproduce, license, distribute, and otherwise commercially exploit the Feedback provided to us with respect to the Service as we sees fit.
- Billing and Payment
Users of certain aspects of the Service may be required to provide their credit card or bank account details to Company or the payment service provider retained by Company. Users will be responsible for paying agreed-upon fees for the Service. Unless otherwise indicated, all fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes on the Company’s income. Except as otherwise expressly set forth in these Terms of Service, all fees for the Service are nonrefundable.
You may terminate these Terms of Service at any time by discontinuing accessing and using the Service and closing your account. We may, at any time, and at our sole discretion, terminate these Terms of Service and your account or suspend or prohibit your access to the Service without prior notice to you for violating any of the Terms of Service or for any other reason whatsoever. Upon termination, any provisions of these Terms of Service that are, by their nature, intended to survive termination (including, but not limited to, any and all disclaimers, limitations of liability, releases, and indemnities) shall survive such termination.
- Disclaimer of Warranties
THE SERVICE AND ALL COMPANY CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. WE HEREBY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF WE HAVE BEEN INFORMED OF SUCH PURPOSE), OF RELIABILITY OR AVAILABILITY, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE WITH REGARD TO THESE TERMS OF SERVICE. WE DO NOT WARRANT THAT THE SERVICE WILL BE PROVIDED ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, OR THAT THE SERVICE WILL FULFILL YOUR REQUIREMENTS. TO THE EXTENT THAT WE CANNOT DISCLAIM ANY SUCH WARRANTIES AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTIES WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW. YOUR SOLE REMEDY AGAINST US FOR DISSATISFACTION WITH THE SERVICE OR ANY COMPANY CONTENT IS TO STOP USING THE SERVICE OR ANY SUCH COMPANY CONTENT. The above disclaimers extend to us and our affiliates, suppliers, and licensors, and our and their shareholders, officers, directors, employees, representatives, and agents (the “Company Parties”).
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE to YOU OR ANY THIRD PARTY for ANY DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF BUSINESS INFORMATION (WHETHER ANY OF THE FOREGOING ARE INCURRED DIRECTLY OR INDIRECTLY) OR ANY special, indirect, incidental, PUNITIVE, consequential, or exemplary damages ARISING OUT OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABLITY, OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF, KNOW OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE COMPANY PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABIILTY, OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE GREATER OF (I) THE FEES PAID BY YOU TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY OR (II) ONE HUNDRED U.S. DOLLARS ($100.00).
You agree to defend, indemnify, and hold harmless the Company Parties from and against any and all third party claims, actions, demands, losses, damages, costs, liabilities and expenses (including but not limited to attorneys’ fees and court costs) arising out of or relating to: (i) your access to or use of the Service, (ii) User Content submitted or posted by you, (ii) your violation of these Terms of Service. The Company Parties will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. The Company Parties reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify the Company Parties, and you agree to cooperate with our defense of these claims at your expense. You agree not to settle any such matter without the prior written consent of the Company Parties.
You are solely responsible for your interactions with Vendors and other users of the Service. To the maximum extent permitted under applicable laws, you hereby release the Company Parties from any and all claims or liability related to any Vendor Deal or other Vendor product or service or any act or omission of any Vendor or other user of the Service.
- Copyright Policy
Company respects the intellectual property of others, and expects users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Service infringe upon your copyright or other intellectual property right, please send the following information to Company’s Copyright Agent at: email@example.com.
A description of the copyrighted work or other intellectual property that you claim has been infringed, including the URL (Internet address) or other specific location on the Service where the material you claim is infringed is located. Include enough information to allow Company to locate the material, and explain why you think an infringement has taken place;
A description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
Your address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
If you believe that the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content, you may send a written counter-notice containing the following information to the Copyright Agent:
Your physical or electronic signature;
Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within the State of Delaware and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Company will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy:
In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances and at Company’s sole discretion, users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You agree that all of the Company trademarks, trade names, service marks, and other logos and brand features that are displayed through the Services (collectively, the “Marks”) are trademarks and the property of Company. You agree not to display or use any Marks in any manner without Company’s prior permission, including but not limited to as a part of a domain name or any other identifier. Third-party trademarks appearing through the Services are the property of their respective third-party owners. The appearance of a third-party trademark through the Services does not mean that Company has any relationship with that third party or that such third party endorses the Services or Company.
- Governing Law and Dispute Resolution.
The parties shall use good faith, reasonable efforts to resolve any dispute before initiating legal action. These Terms of Service shall be governed by the laws of the State of Texas and the United States, without reference to conflict of laws principles. The parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods to these Terms of Service and the Uniform Computer Information Transactions Act as it may be enacted in the applicable jurisdiction. Except for disputes that are subject to arbitration under Section 18 below, the state and federal courts residing in Travis County, Texas shall have sole and exclusive jurisdiction over any dispute arising out of these Terms of Service. We and you hereby consent to such jurisdiction and waive any rights to have the action tried or determined in a different venue. You and we waive all rights to a jury trial in any suit or claim arising out of or in any way connected with these Terms of Service. Notwithstanding anything to the contrary in this Dispute Section, Company may bring suit in court seeking an injunction or other equitable relief arising out of or relating to the infringement of its Intellectual Property Rights, or any illegal or intentional act affecting the accessibility, functionality, or the security of the Service, or any illegal or intentional act against the general business interests of Company.
a. Notification. Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, “push” mobile notification, written or hard copy notice, or through posting of such notice on our website, as determined by Company in our sole discretion. Company reserves the right to determine the form and means of providing notifications to our users, provided that you may opt out of certain means of notification as described in these Terms of Service.
b. Assignment. These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. The Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective successors and lawful assigns.
c. Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. Any additional or different terms in your documents (including any terms contained on ordering documents and purchase orders) shall not apply and are hereby deemed to be material alterations and notice of objection to, and rejection of them, is hereby given.
d. No Waiver. Any failure by us to enforce or exercise any provisions of the Terms of Service shall not constitute a waiver of that right or provision. Our failure to act with respect to a breach by you or others does not waive our rights to act with respect to subsequent or similar breaches.
e. Severability. If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
f. Attorneys’ Fees. In any action to enforce the Terms of Service, the prevailing party shall be entitled to attorneys’ fees and costs.
g. Force Majeure. Company shall not be deemed in default of these Terms of Service because of a delay or failure in performance of its obligation resulting from any cause beyond its reasonable control.
h. Basis of Bargain. Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in these Terms of Service are material bargained for bases of these Terms of Service and that they have been taken into account and reflected in determining the consideration to be given by each party under these Terms of Service and in the decision by each party to enter into these Terms of Service. The parties agree that the limitations and exclusions of liability and disclaimers specified in these Terms of Service will survive and apply even if found to have failed of their essential purpose.
i. Independent Contractors. The parties to these Terms of Service are independent contractors and these Terms of Service do not and will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.
j. Contact Us
If you have questions regarding these Terms of Service or about Company, please contact us by email at firstname.lastname@example.org.
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
a. Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, the Company Parties, and/or any involved third party relating to your account, your use of the Service, your relationship with the Company Parties, or this Agreement. This includes any and all claims that relate in any way to your use of the Service, your attempted use of the Service, and any act or omission by the Company Parties or any third party related to your use or attempted use of the Service. You, Company, the other Company Parties, or any involved third party may pursue a Claim. Company agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against the Company Parties. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
b. Exceptions to Binding Arbitration. As an exception to binding arbitration, you and Company both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. Company will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
c. Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against the Company Parties, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description via email to email@example.com. You agree to negotiate with Company in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within 60 days after Company’s receipt of your written dispute, you agree to the dispute resolution provisions below.
d. Commencement of Arbitration. You and Company agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred.
e. Arbitration Location. The arbitration will be conducted in Austin, Texas. It may be held by telephone or through written submissions if both you and Company agree.
f. Sponsoring Organization, Rules and the Arbitrator. All Claims shall be finally settled by binding arbitration administered by JAMS 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 agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of this Agreement and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you, Company or the other Company Parties.
g. Arbitration Fees. Each party’s responsibility for paying any JAMS filing, administrative, or arbitrator fees will be solely as set forth in the applicable JAMS rules. In addition to any JAMS filing, administrative, or arbitrator fees, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
h. Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Although Company may have a right to an award of attorneys’ fees and expenses under some laws if it prevails, Company agrees that it will not seek such an award, unless your Claims are determined by the arbitrator to be frivolous. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final, subject to appeal under the FAA.
i. Enforceability. This provision survives termination of your account or relationship with Company, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
j. No Waiver. Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims. This provision is the entire arbitration agreement between you and Company and shall not be modified except in writing by Company.
k. Amendments. Company reserves the right to amend this arbitration provision at any time, provided that such amendment shall not apply to any Claim that was filed in a legal proceeding against Company prior to the effective date of such amendment. Your continued use or attempted use of the Service, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Company will provide you notice and an opportunity to opt-out. Your continued use or attempted use of the Service, is affirmation of your consent to such material changes.
l. Opt-Out. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF PURCHASE, USE, OR ATTEMPTED USE OF THE SERVICE (WHICHEVER COMES FIRST) BY WRITING TO COMPANY AT THE FOLLOWING EMAIL ADDRESS: firstname.lastname@example.org. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING THE SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE THE SERVICE. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.