These Terms apply to users of our websites, (e.g. https://zellowork.com/ and https://zello.com/), our products and services, and our mobile applications, which are collectively referred to in these Terms as our “services”. If you are using the services on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to us that you have the authority to bind that entity or organization to these Terms (and, in which case, the term “you” will refer to you and that entity or organization). You can use our services only if you can lawfully enter into and form contracts under applicable law. If you use our services, you must do so in compliance with these Terms and with applicable laws and regulations. If you do not want these Terms to apply, please do not use our services.
THESE TERMS OF SERVICE CONTAIN AN ARBITRATION AGREEMENT THAT WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST THE COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Changes to These Terms
We may change or modify portions of these Terms at any time, including when there are changes in our services, technology, regulation or for other reasons. If we do, we will provide notice by posting the updated Terms on our website and changing the “Last Updated” date above. Any amended Terms will become effective no earlier than 14 days after they are posted and will apply prospectively to you use of the services after the changes become effective, except that changes addressing new functions of our services or changes made for legal reasons may be effective immediately. Your continued use of our services following the effective date of these changes will constitute your acceptance of such changes. If you do not agree to any amended Terms, you will need to discontinue using our services.
Accessing and Using Our Services
Our services are designed to provide push-to-talk, “walkie-talkie” functionality for mobile devices across different networks. Our services are capable of supporting communications between one-to-one, or one to many (up to 10,000 users) on one dedicated channels. Please review our Support Page (available at https://support.zello.com/hc/en-us) for additional description of the features and functionalities of our services.
We will disburse to you any fees once we have received them at the end of each month, less a revenue share percentage, any refunds and any chargebacks. You agree that we may retain a revenue share percentage from the proceeds paid to us for the monthly pass and annual pass, which shall be set forth within the services. We reserve the right to change the revenue share percentage from time to time. If we do change the revenue share percentage, we will provide notice of the change through the services or in an email to you. Your continued use of the services after the revenue share change becomes effective constitutes your agreement to the new revenue share percentage. You shall be responsible for all taxes associated with the services other than U.S. taxes based on Company’s net income.
To the extent the services or any portion thereof is made available for any fee, you will be required to provide us information regarding your credit card or other payment instrument. You represent and warrant to us that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay us the amount that is specified in payment confirmation page in accordance with the terms of these Terms of Service. If you dispute any charges you must let us know within sixty (60) days after the date that we charge you.
You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security, and ensure that you exit from your account at the end of each session when accessing our services. We will not be liable for any loss or damage arising from your failure to comply with this section.
Modifications to Services
We may modify or discontinue, temporarily or permanently, our services or any part of our services with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of our services.
Usage and Storage
You acknowledge that we may establish general practices and limits concerning use of our services, including the maximum period of time that a user can retain data or other content using our services and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by our services. You acknowledge that we reserve the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
Our services are available via a mobile device, including the ability to upload content to the services using a mobile device, the ability to browse the services from a mobile device and the ability to access certain features through an application downloaded and installed on a mobile device. To the extent you access our services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain mobile services may be prohibited or restricted by your carrier, and not all mobile services may work with all carriers or devices. By using our mobile app, you agree that we may communicate with you by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of our mobile app may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to a person that acquires your old number.
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials that you upload, post, publish or display or email or otherwise use via our services. The following are examples of the kind of content and/or use that is illegal or prohibited. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this section, including without limitation, suspending or terminating your account and reporting you to the law enforcement authorities. You agree to not use our services to:
upload or transmit any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, nude, partially nude, or sexually suggestive, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying our services, or which may expose us or our users to any harm or liability of any type;
create a username for the purpose of preventing others from using that handle, sell or buy usernames, or impersonate another person or entity in a manner that is intended to or does mislead, confuse or deceive others, or falsely state or otherwise misrepresent your affiliation with a person or entity;
interfere with or disrupt our services or servers or networks connected to our services, or disobey any requirements, procedures, policies or regulations of networks connected to our services;
violate any applicable local, state, national or international law, or any regulations having the force of law;
solicit personal information from anyone under the age of 18;
promote suicide, self-harm, self-mutilation or eating disorders. It may be acceptable to share information about self-harm if used in the context of providing support to other users;
harvest or collect email addresses or other contact information of other users from our services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized by us;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
post content (text, image, audio) that implicitly or explicitly associates the user with, or represents promotion or celebration of violent extremist ideologies, groups, and tactics. We acknowledge that there is no universal definition of terrorism. For the purposes of our service, we will consider terrorist content to be material posted by, or in, support of organisations included on the Consolidated United Nations Security Council Sanctions List, in addition to country/region-specific sanctions list;
participate with or communicate to organizations whose principles specifically endorse or espouse violence;
obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through our services.
In connection with your use of our services you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by us from accessing our services (including by blocking your IP address or your associated phone number), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address).
Export Controls; International Use
Software (as defined below under “Services Content, Software and Trademarks”) available in connection with our services and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from our services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using our services is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of our services, including as it concerns online conduct and acceptable content.
You agree not to use our services for any commercial purposes, except to the extent you are using the services under a paid subscription. The terms “commercial purposes” or “commercial use” shall mean any use of the services that directly or indirectly contributes to you or your organization deriving a commercial benefit or financial gain.
If you believe you or your organization is using any free service for commercial purposes, without limiting our remedies, you must notify us to discuss your transition to a paid subscription.
Furthermore, and unless otherwise expressly authorized in these Terms or in our services, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of our services, use of our services, or access to our services.
Intellectual Property Rights
Services Content, Software and Trademarks
You acknowledge and agree that our services may contain content or features (“Services Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on our services or the Services Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below under “User Content Transmitted Through the Services”) that you legally upload to our services. Any use of our services or the Services Content other than as specifically authorized in these Terms is strictly prohibited. The technology and software underlying our services or distributed in connection therewith are the property of us, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by us. Our name and logos are our trademarks and service marks (collectively the “Trademarks”). Other product and service names and logos used and displayed via our services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in these Terms or our services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Trademarks displayed on our services, without our prior written permission in each instance. All goodwill generated from the use of Trademarks will inure to our exclusive benefit.
User Content Transmitted Through the Services
With respect to the content or other materials you upload through our services or share with other users or recipients (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant us and our affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content solely in connection with the operation of our services in any form, medium or technology now known or later developed, including allowing such information to be shared with or by other users. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about our services, submitted by you to us are non-confidential, and we will be entitled to the unrestricted use and dissemination of these submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You acknowledge and agree that we may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: comply with legal process, applicable laws or government requests; enforce these Terms; respond to claims that any content violates the rights of third parties; or protect the rights, property, or personal safety of us, our users and the public. You understand that the technical processing and transmission of our services, including your content, may involve transmissions over various networks; and changes to conform and adapt to technical requirements of connecting networks or devices.
We respect the intellectual property of others, and expect our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below. We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to us at [email protected] with the subject line “DMCA Takedown Request”. To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on our service, with enough detail that we may find it on our service:
your address, telephone number, and email 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 above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If you believe that your User 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 upload and use the content in your User Content, you may send us a written counter-notice containing the following information:
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 email address, a statement that you consent to the jurisdiction of the federal court located within Austin, Texas and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If we receive a counter-notice, we 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 ten (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 ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion. In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances and in our sole discretion, users who are deemed to be repeat infringers. We may also, in our sole discretion, limit access to our services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Materials
Third Party Websites
Our services may provide, or third parties may provide, links or other access to other sites and resources on the Internet. We have no control over such sites and resources, and we are not responsible for and do not endorse such sites and resources. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using our services are between you and the third party, and you agree that we are not liable for any loss or claim that you may have against any such third party.
Third Party Content
Under no circumstances will we be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that we do not pre-screen content, but that we and our designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via our services. Without limiting the foregoing, we and our designees will have the right to remove any content that violates these Terms or is deemed by us, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
Indemnity and Release
You agree to release, indemnify and hold us and our affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of our services, any content, your connection to our services, your violation of these Terms or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. We make no warranty that our services will meet your requirements, that our services will be uninterrupted, timely, secure, or error-free, that the results that may be obtained from the use of our services will be accurate or reliable, or that the quality of any products, services, information, or other material obtained by you through the services will meet your expectations.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID US IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
You agree that we, in our sole discretion, may suspend or terminate your account (or any part thereof) or use of our services and remove and discard any content within our services (including any User Content), for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of our services, may be referred to appropriate law enforcement authorities. You agree that any termination of your access to our services under any provision of these Terms may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or our services. Further, you agree that we will not be liable to you or any third party for any termination of your access to our services.
Disputes with Other Users
You agree that you are solely responsible for your interactions with any other user in connection with our services, and we will have no liability or responsibility with respect thereto. We reserve the right, but have no obligation, to become involved in any way with disputes between you and any other user of our services.
These Terms constitute the entire agreement between you and us and govern your use of our services, superseding any prior agreements between you and us with respect to our services. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms will be governed by the laws of the State of Texas without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and we agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Austin, Texas. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our services or these Terms must be filed within one year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without our prior written consent, but we may assign or transfer these Terms, in whole or in part, without restriction. Notices to you may be made via either email or regular mail.
Notice for California Users
Under California Civil Code Section 1789.3, users from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
You may contact us using this form.
SPECIAL TERMS REGARDING APPLE-ENABLED SOFTWARE APPLICATIONS
In this section we refer to Zello Inc. as the “Company”. The Company offers software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to software that is made available for your use in connection with an Apple-branded product (such software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in the Company’s Terms, the following terms and conditions apply:
The Company and you acknowledge that the Company’s Terms are concluded between the Company and you only, and not with Apple, and that as between the Company and Apple, the Company, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise is in conflict with, the App Store Terms.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be the Company’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
The Company and you acknowledge that the Company, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between the Company and Apple, the Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to the Company as provided in the section “Contact Us” below.
The Company and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.
DISPUTE RESOLUTION BY BINDING ARBITRATION
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
In this section we refer to Zello Inc. as the “Company”.
Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and the Company, whether arising out of or relating to these Terms (including any alleged breach thereof), our services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and the Company are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND THE COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND THE COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution
The Company is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by getting in touch with us using this form. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to the Company should be sent to 1317 W 6th, Austin, Texas 78703 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If the Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by the Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless the Company and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, the Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If you are able to demonstrate to the arbitrator that you are an “indigent consumer,” as defined by section 1284.3 of the California Code of Civil Procedure, the Company will pay your portion of the Arbitration Fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, the Company will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules. If it is determined that your dispute or claim was frivolously filed, you shall be responsible for your share of the Arbitration Fees.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms will continue to apply.
Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, the Company agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of our services, you may reject any such change by sending the Company written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).