Terms of Service
Toky, Inc. (“Toky”, “we” or “us”) offers various services to you through our website (toky.co) and our application on the web, all of which are conditioned on your agreement to adhere to the following Terms of Service without modification of any kind. Your use of the Service and/or your registration with us constitutes your agreement to these Terms of Service. These Terms of Service are subject to change at any time, without prior notice. Any changes that are made to these Terms of Service will not apply retroactively and will not apply to disputes or events occurring before the change is published. You are responsible for reviewing these Terms of Service on a regular basis. Your continued use of Toky after such changes have been posted constitute your binding acceptance of such changes. These Terms of Service apply to all visitors and all who access our website or Services.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICE, THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL.
We respect the privacy and security of our Users. You understand that by using our Services, you give consent to the collection, use and disclosure of your personally identifiable information as well as any non-personally identifiable information.
You affirm that you are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. If you are under 18 years of age, then please do not use our website or our Service.
In our discretion, we may maintain different accounts for different types of Users. 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 on the entity’s behalf. By connecting to us with a third-party service (CRMs and integrations in general, e.g., Zoho, Pipedrive, Salesforce, Intercom or any other we have), you give us permission to access and use your information from that service as permitted by that third-party service, to present the information stored in that service to better display information on your Toky account, and to store your log-in credentials for that third-party service. The Service is not available to any User who has been removed from the Service by us.
Subject to the terms and conditions of this Agreement, Toky will provide you with non-exclusive access to the Services during the term of this Agreement – solely for use for your own, internal business purposes. The “Service” includes (a) the Site, (b) Apps and (c) other services provided to you through www.toky.co (“Site”) based on the plan purchased, including all software, data, text, images, sounds, videos, and other content made available through the Site. Any new features added to or augmenting the Services are also subject to this Agreement, it being understood and agreed that new features may not be available for all pricing plans. The Services may also include basic or expanded support based on the Service plan purchased. Toky will use reasonable efforts to make the Services available except for: (a) planned downtime, (b) emergency maintenance, or (c) any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, major disruptions in the providers we use, acts of God, acts of government, acts of terror or civil unrest.
You are responsible for maintaining the confidentiality of your login and account, and are fully responsible for any and all activities that occur under your login or account. You agree and acknowledge that your login may only be used by one (1) person, and that you will not share a single login among multiple people.
By registering and/or participating in this Service, you agree and represent as follows:
- You are of legal age and are otherwise capable of forming a legally binding contract;
- All information you submit to us or in connection with a Service is accurate and complete and that you will maintain and promptly update any profile supplied to us to ensure accuracy at all times;
- You agree to be contacted via Email, SMS and text messaging by us or by other Service users, including push notifications regarding our Services, our website, and third party (provided, however, that you understand all SMS and text messages you receive through the Service are sent to you by other users and not by Toky);
- You hereby grant us permission to display your profile and such other information as may be supplied by you on our website in connection with the provision of Services;
- By using the Service, you are granting us permission to access your account and those messages, data, information, text, graphics, audio, video or other material (“Materials”) posted/uploaded/transmitted to or through the Service using your account, solely in connection with the provision of Services and give Toky permission to use your company logo in our Site and other print material to identify yourself as a registered user of the Service and for advertising purposes;
- You will not (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms of Service; (b) use the Service to process data on behalf of any third party, (c) modify, adapt or hack the Service to falsely imply any sponsorship or association with Toky, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks;
- You understand that the Service is not intended to support or carry emergency calls to any emergency services such as public safety answering points and that Toky will not be held liable for any claim, damages or loss (and you hereby waive any and all such claims or causes of action), arising from or relating to your (or your customers’) inability to use your Service subscription to make such emergency calls. Please make sure that you have an alternate means to send and receive emergency calls;
- You will abide by all applicable laws in your use of the Service, including without limitation any relating to the sending of text or SMS messages through the Service.
- Billing and Payments. The Service is charged on a monthly or annual basis and is non-refundable. Unused credits are also non-refundable. Unused credits will remain on your account and available for your use for the Initial Term or the Renewal Term in which they are purchased, but upon each renewal and upon termination of this Agreement shall expire without any refund or payment by Toky therefore. License prices are subject to change at any time, but any increase will not go into effect until the next billing cycle or contract period. For example, if you joined Toky when a license cost for one user was $12 per month, and the price increases to $15 per month, then at the end of your initial subscription term, the new price would go into effect for the next term. We will provide you with at least 45 days’ advance notice of a license price increase, and you will then have fifteen (15) days in which to cancel your renewal before the new price goes into effect. Minutes used are charged against the credits on your account at Toky’s then-current rates, which are subject to change without notice unless otherwise agreed in writing. If you do not provide your credit card or other payment information to Toky, your account will be suspended until payment information and charge authorization are provided. Thereafter, unless terminated by you as provided herein, your subscription will renew automatically at the then current pricing based on your plan’s renewal cycle. The Service provides an interface for the account owner to change credit card information (e.g., upon card renewal). The account owner will receive a receipt upon each payment received.
- Modifying Your Subscription. If you choose to upgrade your plan or number of agents during your elected subscription period, any incremental cost will be prorated over the remaining term of the subscription period and charged to your account and credit card. Subsequently, you will be charged the adjusted rate on your next billing cycle. Regardless of your billing cycle, there are no refunds or credits for partial months of Service, plan downgrades, or refunds for unused time if you close your account before the end of your subscription period. No exceptions will be made in order to treat everyone equally and keep our administrative costs low for the ultimate benefit of our customer base. Downgrading your plan level may cause the loss of content, features, or capacity of your account and Toky does not accept any liability for such loss. Toky reserves the right to require payment by credit card in advance of services.
- Overdue charges. If you fail to pay your subscription fee on time, or if your credit card payment information is entered in error or does not go through for processing and you do not update payment information upon our request, your entire subscription may be suspended or cancelled. Toky will keep your account and resources available for up to 3 (three) weeks after the first charging attempt failed. After this period, Toky may erase or release any resources allocated, including but not limited to, phone numbers, agents and purchased credit.
- Billing Privacy. Toky uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use your billing information except to process your credit card information for Toky. Taxes. Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Toky based on its income. We will invoice you for such Taxes if we believe we have a legal obligation to do so.
- Billing Disputes. You have fifteen (15) days from receipt of an invoice or bill in which to initiate a dispute by emailing Toky at firstname.lastname@example.org, otherwise you agree that you have waived all rights with respect to the time period for such billing/invoice. Toky will respond to any inquiry or dispute with respect to its invoices or billings within thirty (30) days of receipt of a written inquiry or dispute, but until resolved, you agree to pay all invoices in a timely fashion, even those subject to dispute. You agree that you will initiate a dispute with Toky and seek resolution informally prior to filing a dispute with your credit card company. If you fail to initiate a dispute with Toky first, and do not allow for the 30 days response time, you acknowledge that you thereby waive your right to file a dispute with your credit card company.
4. Protection of Data
Toky will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity your data.
The Services may be provided using equipment or facilities located in the European Union or the United States. The Supplier’s US service providers are either Privacy Shield compliant or have executed Standard Contractual Clauses (as approved by the European Commission) that provide legal grounds for assuring that, when processed in the United States, the personal data of EU citizens that are processed when using the Service will receive an adequate level of protection within the meaning of Article 46 of Regulation (EU) 2016/679 (General Data Protection Regulation).
By agreeing to these Terms, You grant Toky a general authorization in the meaning of Article 28 (2) of Regulation (EU) 2016/679 to engage processors for the purposes of providing the Services. We will inform You of changes in such processors in accordance with the procedure of modifying these Terms.
List of Processors:
Amazon Web Services
Hosting services in the US and Ireland (Privacy Shield certified).
Support/Sales chat and transactional email automation (Privacy Shield certified).
Payment gateway (PCI compliant and Privacy Shield certified).
CRM tool (Privacy Shield certified).
5. Responsibility For User Content and Call Recording
We respect the rights of third party creators and content owners and expect that you will do the same. Given the nature of the Service and the volume of information submitted, we cannot and do not monitor all of the Materials posted or transmitted by you and other third-party information providers via the Service, including, without limitation, any Materials posted via the Service. You expressly agree that we will not be liable for Materials. We reserve the right, but are not obligated, to remove content from the Service for any reason, including content that we believe violates these Terms or our Acceptable Use Policy below.
Please note that while Toky.co offers the option for you to record calls, if you choose to use this service, then you must comply with all state and federal laws, regulations and rules prior to recording any telephone calls and you expressly warrant and represent to Toky that you shall comply at all times. We make no representations or warranties with respect to call recording and recommend that always secure consent before recording. You acknowledge that these representations and obligations are essential to the ability of Toky to provide you with access to call recordings and you further agree to indemnify, defend and hold Toky and its officers, directors, owners, employees, agents, consultants and vendors harmless from and against any and all liabilities, losses, claims, damages, causes of action, costs and expenses (including attorneys’ fees) that may be incurred by Toky arising out of or related to your acts or omissions in connection with call recordings, whether such claims arise under contract, tort, statute or other legal theory.
6. Acceptable Use Policy
The following is a partial list of the kinds of activities that are prohibited on or through the Service: (a) submitting Materials that are patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) engaging in activities or submitting Materials that could be harmful to minors; (c) engaging in activity or submitting Materials that harasses or advocates harassment of another person; (d) engaging in activity that involves the transmission of “junk mail” or unsolicited mass emailing or “spam” or harvesting or otherwise collecting personally identifiable information about Service users, including names, phone numbers, addresses, email addresses, (collectively, “User Data”) without their consent; (e) engaging in activity, or submitting Materials, or promoting information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (f) submitting Materials that contain restricted or password only access pages, or hidden pages or images; (g) submitting Materials that displays pornographic or sexually explicit material of any kind; (h) submitting Materials that provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (i) submitting Materials that contain viruses, Trojan horses, worms, or any other similar forms of malware, (j) engaging in activities or submitting Materials that solicit passwords or personally identifiable information for unlawful purposes from other users; (k) engaging in unauthorized commercial activities and/or sales without our prior written consent such as advertising, solicitations, contests, sweepstakes, barter, pyramid schemes, unsolicited marketing or other activities, including any activities that violate anti-spam laws and regulations including the CAN SPAM Act of 2003, the TCPA Rules (as defined below), and the Do-Not-Call Implementation Act (or any similar or analogous anti-spam, data protection, or privacy legislation in any other jurisdiction); (l) using any robot, spider, other automatic device, or manual process to monitor, copy, or “scrape” web pages or the content contained in the website or for any other unauthorized purpose without our prior written consent; (m) using any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; (n) decompiling, reverse engineering, or disassembling the software or attempting to do so; or (o) taking any action that imposes an unreasonable or disproportionately large load on the Service or our hardware and software infrastructure or that of any of its Licensors or Suppliers. In addition, you covenant and represent that you will not use the Service for any purpose other than those that are for your internal business purposes, nor will you use this Service in violation of any applicable laws or regulations (including those relating to the recording of telephone calls telemarketing, and the sending of text or SMS messages), industry standards, third party policies (including all of the applicable guidelines published by the CTIA, the Mobile Marketing Association), or any other accepted industry associations, carrier guidelines (or any similar or analogous industry standards, third party policies or requirements in any other jurisdiction), or these Terms of Service.
6.2 Calling and Messaging through the Services
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the electronic transmission of messages and calls that you create and initiate through the Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the Services by visiting the following websites:
- Federal Trade Commission, http://www.ftc.gov
- Federal Communications Commission, http://www.fcc.gov
- DoNotCall Registry Info, http://www.donotcall.gov
In particular, you acknowledge that the Telephone Consumer Protection Act of 1991 together with final rules and regulations (collectively, “TCPA Rules”), generally prohibits (1) the making of telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) the making of any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number, in each case, without prior express consent. You understand and agree that you are solely responsible for complying with the TCPA Rules and any other state, federal or local laws, rules and regulations, in effect from time to time, governing electronic communications between you and the owners of the phone numbers you initiate calls or messages to through the Services. Without limiting the foregoing, you represent and warrant that the owners of the phone numbers have given prior express consent or otherwise opted-in to the receipt of such calls or messages as required by any applicable law or regulation. You agree that you will include clear opt-out/unsubscribe information on your calls or messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, to the extent applicable. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and you further agree that you will not initiate any subsequent messages or calls to any individuals after they request DNC status.
The TCPA Rules, the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. Toky is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your use of the Services to initiate calls or messages.
6.3 Type of Use
Toky’s pricing is not designed for high volume inbound contact centers. If you plan to use Toky for inbound contact centers, you must notify Toky about this before upgrading to a paid plan.
Toky will also limit the amount of simultaneous calls you receive to 3 concurrent calls per agent at any given time, unless this limit is removed for special setups that were previously agreed between You and Toky.
Toky reserves the right to suspend or cancel the Service if Toky believes you have violated the Acceptable Use Policy described above.
7. Use of Third Party Services
As a part of our Service, we may offer integrations with web sites and applications operated by various third parties and Toky is not responsible or liable for any acts or omissions created or performed by these third parties, including any difficulties accessing their services. We provide such integrations for your convenience and reference only. We do not operate or control in any way any information, software, products or services available on such web sites or applications. Our inclusion of an integration with a web site or an application does not imply any endorsement of the services or the site, its contents, or its sponsoring organization.
8. Representations and Warranties and Indemnification
You hereby represent and warrant that: (a) you have all necessary authority, rights and permissions to submit the Materials and grant the licenses described in these Terms of Service, (b) the Materials are accurate, current and complete, (c) the Materials and your use of the Service shall not infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other rights of third party, including, without limitation, any rights of privacy or publicity or any contractual rights, (d) the Materials and your use of the Service shall not violate any applicable law or regulation or cause injury to any person; (e) your use of the Service shall not violate any agreements between you and a third party.
You agree to indemnify, defend and hold harmless Toky, and its officers, directors, employees, agents, and contractors from and against any and all claims, costs, demands, damages, liabilities, or expenses, including, without limitation, reasonable attorneys’ fees, arising from or related to: (a) the Materials you provide or approve for publication, (b) your use of the Service (including any call recording), (c) your breach of these Terms of Service (including your failure to comply with the TCPA Rules), or (d) any actual, prospective, completed or terminated service between you and a third party.
9. Disclaimers and Limitations
Errors in the information contained in our Service sometimes occur. In addition, we may make changes and improvements to the Service provided herein at any time. THE SERVICE AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH IT ARE PROVIDED “AS IS.” WE AND/OR OUR SUPPLIERS, PARTNERS AND AFFILIATES DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICE AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. USE OF OUR SERVICE IS AT YOUR OWN RISK. WE AND/OR OUR SUPPLIERS, ARE NOT LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE OR WITH THE DELAY OR INABILITY TO USE THE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH US, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. OUR LIABILITY, AND THE LIABILITY OF US, OUR SUPPLIERS AND AFFILIATES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. IN ADDITION, TOKY WILL NOT BE LIABLE FOR (A) THE COST OR PROCUREMENT OF ANY SUBSTITUTE TECHNOLOGY OR SERVICES, (B) ANY MATTERS CONTEMPLATED BY FORCE MAJEURE BELOW, (C) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE CONTAINED IN OR DELIVERED VIA THE SERVICES (REGARDLESS OF THE SOURCE OF ORIGINATION), (D) THE LOSS OF ANY DATA OR OTHER TECHNICAL ISSUES, OR DAMAGES TO YOUR MOBILE DEVICE OR OTHER HARDWARE OR SOFTWARE THAT IS CAUSED BY THE SERVICE (FOR CLARITY, INCLUDING ANY SYSTEMS, APPLICATIONS, CODE, PROCESSES OR METHODS USED TO PROVIDE THE SERVICE), OR (E) DAMAGES FOR ANY EMAILS OR OTHER CONTENT THAT YOU OR YOUR END USERS SEND OR POST VIA THE SERVICE. THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF TOKY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE CONTRACT BETWEEN US AND YOU. Some states do not allow the limitation of liability, so the foregoing limitation may not always apply.
ERRORS AND DELAYS
We are not responsible for any errors or delays caused by an incorrect e-mail address provided by you or other technical problems beyond our reasonable control. It is your responsibility to ensure that Toky has updated email addresses and contact information.
10. Cancellation and Termination
You can give us notice to terminate this Agreement, to take effect on or after the end of the Minimum Term as defined in your Service Agreement. You must provide fifteen (15) days written notice in advance of that date. If you have failed to provide the required notice of termination, then, at the end of each term, your Service Agreement will either terminate or renew automatically, depending on your Service Agreement.
Termination or expiration of this Agreement shall not affect any rights or obligations of the parties, including the payment of amounts due, which have accrued up to the date of such termination, expiration or end of the minimum term.
Toky reserves the right in its sole discretion, and without any prior notice, to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or terminate your account or any part thereof (or Your use of the Service), and remove and discard any of Your content within the Service if we believe that You have violated these Terms. Toky will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of Service, and may be referred to law enforcement authorities. Toky shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service or any aspect thereof.
You may unsubscribe from any further marketing communications from us at any time by delivering a written notice addressed to email@example.com. You shall be responsible for ensuring delivery of the notice to us. You may also unsubscribe by clicking the Email Preferences link or the opt-out link in any of our emails. We shall not be obligated to store any data or files for more than thirty (30) days after termination of your access to the Service. Notwithstanding the any request to unsubscribe from emails, Toky may still email you regarding administrative matters, such as billing and/or changes to our service or Terms of Service.
11. Portability of Numbers
Toky offers the possibility of porting your existing phone number from other services, to Toky’s platform.
Toky won’t cover any expenses related to porting your number in or out Toky. Some fees may apply depending on the number, in which cases, Toky will let you know before the process is started.
You won’t be able to port a number bought from Toky if your account is not active, or if you didn’t use Toky for at least 3 months. Porting your number out of Toky is not Toky’s responsibility and You should ask Your new provider to initiate the porting process and take care of the necessary procedures.
12. Dispute Resolution
Any claim or controversy arising out of or relating to the use of our Service, to the goods or services provided by us, or to any acts or omissions of other users for which you may contend we are liable, including but not limited to any claim or controversy (“Dispute”), shall be finally, and exclusively, settled by arbitration in San Francisco, California, from which arbitration there shall be no appeal. The arbitration shall be held before one arbitrator. The arbitrator shall be selected pursuant to the AAA rules. The arbitrator shall apply the substantive law of the state of California, except that the interpretation and enforcement of this arbitration provision shall be governed by the U.S. Federal Arbitration Act. To begin the arbitration process, a party must make a written demand therefore. Each party shall bear its own costs and attorneys’ fees. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The arbitrator shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOU ACKNOWLEDGE AND AGREE THAT YOU AND WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and we otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
13. Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
14. Export Compliance And Use Restrictions
Certain content and software components of the Service may be subject to U.S. export control and economic sanctions laws. If you are subject to U.S. laws, you agree to comply with all such laws and regulations as they relate to such software and content, and access and use of the Service. You shall not access or use the Service if you are located in Burma (Republic of the Union of Myanmar), Cuba, Iran, Libya, North Korea, Sudan, or Syria (the “Prohibited Jurisdictions”), and you shall also not provide access to the Service to any government, entity or individual located in the Prohibited Jurisdictions.
IF YOU DO NOT AGREE TO THE TERMS STATED ABOVE OR TO ANY CHANGES MADE IN THESE TERMS, PLEASE EXIT THIS WEBSITE AND SERVICE IMMEDIATELY.