The Service is a way for adults to meet each other (and, for the avoidance of doubt, the “Service” includes any materials or content provided through www.crosspathsapp.com or the CROSSPATHS Application (the “Application”)). The Service is provided by Spark Networks® USA, LLC, whose principal office is located at PO BOX 540, LEHI UT 84043 UNITED STATES (“Spark Networks”).
These Terms and Conditions of Service constitute a legal agreement (“Agreement”) between You and Us. By visiting www.crosspathsapp.com, downloading the Application and / or using the Service, You expressly agree to this Agreement, as updated from time to time.
You may not use the Service if you are under the age of 18 or you are not able to form legally binding contracts, or if your account has been suspended by Us. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING FOR THE SERVICE. By registering for the Service, You become a Spark Networks user (a “User”), and You agree to be bound by the terms and conditions of this Agreement for as long as You continue to be a User. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD THE APPLICATION AND DO NOT REGISTER FOR OR USE THE SERVICE.
THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE SUBJECT TO CHANGE BY US AT ANY TIME, EFFECTIVE UPON NOTICE TO YOU, WHICH NOTICE SHALL BE PROVIDED UPON OUR POSTING OF THE CURRENT VERSION OF THIS AGREEMENT ON WWW.CROSSPATHSAPP.COM OR WITHIN THE APPLICATION. You agree that Your continued use of the Application or the Service will constitute acceptance of any changes to this Agreement.
THIS AGREEMENT REQUIRES THE BINDING ARBITRATION OF ANY AND ALL DISPUTES, AS STATED IN THE “RESOLUTION OF DISPUTES” SECTION BELOW (OTHER THAN CERTAIN SPECIFIED INTELLECTUAL PROPERTY DISPUTES DEFINED BELOW, AND CLAIMS THAT MAY BE ADJUDICATED IN SMALL CLAIMS COURT), WHICH YOU SHOULD READ IN ITS ENTIRETY. YOU UNDERSTAND THAT THIS IS A LEGALLY BINDING INSTRUMENT AND AGREE TO ABIDE BY ITS TERMS. YOU EXPRESSLY AGREE WITH US THAT ANY DISPUTE MAY ONLY BE RESOLVED THROUGH AN INDIVIDUAL ARBITRATION BETWEEN YOU AND US, AND SHALL NOT BE BROUGHT AS A CLASS ARBITRATION, A CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING.
In this Agreement the following terms have the following meanings unless the context requires otherwise:
“Agreement” means the agreement between You and Us incorporating these terms and conditions for the provision of the Service, as amended from time to time in the manner set forth herein;
“We, Us, Our” means Spark Networks® USA, LLC; and
“You, Your, Yourself” means the person who accesses or downloads the Application or registers for or uses the Service.
ELIGIBILITY:By creating an account, You represent and warrant that You are at least 18 years old. By downloading the Application or using the Service, You represent and warrant that You have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement. By downloading the Application or using the Service, You represent and warrant that You have never been convicted of a felony and that You are not required to register as a sex offender with any government entity. Your membership for the Service is for Your sole, personal use. You may not authorize others to use Your account, and You may not assign or otherwise transfer Your account to any other person or entity.
REGISTRATION AND ADDITIONAL SERVICES:You may download the Application and create an account to use the Service for free. There are several products or services We may offer, from time to time, with the Service that You must pay to use. These fees are set out in Our price list. This price list is part of this Agreement and We reserve the right, at any time, to change any fees or charges for using the Service. To become a User, You must sign up for the Services. When and if You log in to the Service, You agree to provide accurate, current and complete information about Yourself as prompted by Our login page (“Registration Data”), and to maintain and update Your information to keep it accurate, current and complete. You agree that We may rely on Your Registration Data as accurate, current and complete. You acknowledge that if Your Registration Data is untrue, inaccurate, not current or incomplete in any respect, We may terminate this Agreement and Your use of the Service and, in such event, You shall not be entitled to a refund of any unused fees. Although we aim to verify the accuracy of the information provided by Our Users, We do not verify information in profiles, and We have no control over, do not guarantee, and are not responsible for the quality, truth, accuracy, legality or safety of Our Users.
TERM AND TERMINATION: This Agreement will remain in full force and effect while You use the Application or the Service and/or are a Member, and after You have ended use of the Application or the Service and/or ceased to be a User, including without limitation the “Resolution of Disputes” section below. You may disable Your account at any time by following the instructions in the Settings section of the Application. We may terminate your account by removing your profile, at any time, for any reason, with or without explanation, effective upon sending written or email notice to the other party or without notice if We believe You have breached this Agreement. You shall not be entitled to, nor shall We be liable to You for, any refund of any unused fees for in app purchases. Again, even after membership is terminated, this Agreement will remain in effect.
PURCHASES: We may offer additional products and services for purchase through the Application on various platforms including, but not limited to, the App Store℠ and Google Play. You will be required to use your account information with the specific platform you are using to log in and make a purchase through the Application (“Platform Account”). Your Platform Account will be charged in accordance with the terms disclosed at the time of purchase as well as the general terms that apply to your Platform Account. If You purchase a product or service that automatically renews at the guaranteed renewal rate for the period of time that applies to the purchase option chosen by You at time of purchase, your Platform Account will be billed continuously until you cancel in accordance with the Platform Account terms. If a purchase includes a free trial period, you must cancel prior to the end of the trial period to avoid any payments through Your Platform Account for the product or service. Upon the completion of the trial period, you will be automatically billed at the rate and for the period of time that applies to the purchase option selected when You signed up for the trial. If You have any questions about Your purchases through the Application, please refer to the applicable Platform Account terms.
PROPRIETARY RIGHTS: You represent and warrant to Us that the information posted in Your profile, including Your photograph, is posted by You and that You are the exclusive author of Your profile and the exclusive owner of Your photographs. You assign to Us, with full title guarantee, all copyright in Your profile, Your photographs posted, and any additional information sent to Us at any time in connection with Your use of the Service. You waive absolutely any and all moral rights to be identified as author of Your profile and owner of Your photograph and any similar rights in any jurisdiction in the world. In addition, other Users may post copyrighted information, which has copyright protection, whether or not it is identified as copyrighted. Except for that information which is in the public domain or for which You have been given express written permission, You will not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information. By posting information, photographs or content on any Service, You automatically grant, and You represent and warrant that You have the right to grant, to Us and other users, free of charge, an irrevocable, perpetual, non-exclusive, royalty-free, fully-paid, worldwide license to use, copy, perform, display, promote, publish and distribute such information, content and photographs and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sub-licenses of the foregoing.
YOUR USE OF THE APPLICATION AND SERVICE: As a User, You agree that:
(1) You will use the Application and Service in a manner consistent with any and all applicable laws and regulations. You will not engage in advertising to, or solicitation of, other users to buy or sell any products or services through the Application or Service. You will not transmit any chain letters or junk email to other users. We reserve the right to change this number, at our sole discretion, at any time. You are solely responsible for Your interactions with other users. We reserve the right, but have no obligation, to monitor and/or mediate disputes between You and other users.
(2) You are solely responsible for the content or information You publish or display (hereinafter, “post”) through the Application or on the Service, or transmit to other users. You will not post through the Application or on the Service, or transmit to other users or to Us or Our employees, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party’s rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). You will not include in Your profile any offensive language, including but not limited to offensive anatomical or sexual references, or offensive sexually suggestive or connotative language, and You will not post any photos containing nudity or personal information. We reserve the right, but We have no obligation, to reject any profile or photo that does not comply with the prohibitions set forth in this section. We reserve the right to refuse service to anyone, at our sole discretion.
(3) By creating an account, You agree to accept and consent to receiving communications initiated from Us or through Us including, without limitation: message notification, user to user notifications, “Your Match” notices and emails, notices and emails informing you about events and parties We organize, notices and emails informing You of changes to the Service and notices and emails informing You of promotions that either We provide or that are being provided by third parties. If you choose to respond to promotions that are provided by third parties and in the course of doing so, disclose information to any external service providers, and/or grant them permission to collect information about you, then their use of your information is governed by their privacy policies. Message notification emails such as “Your Match” emails, emails informing you about events and parties We organize and emails informing You of changes to the Service are provided by Us as part of the operation of the Service and you will receive these messages for as long as Your account is active. Should You not wish to receive any of Our notices or email communications, please do not register with Us for the Service. However, You may opt-out of receiving Email communications sent from Us or through Us offering You third party goods or services by emailing email@example.com.
(4) You agree that We have no responsibility or liability for the deletion, corruption or failure to store any messages or other content maintained or transmitted by the Application or Our Service. You acknowledge that features, parameters or other services that We provide and even the fact that we provide an application based service may change at any time and that we may stop supporting or updating Our Application at any time with or without notice to You. You acknowledge that We reserve the right to sign out, terminate, delete or purge Your account from the Service if it is inactive. “Inactive” means that you have not signed in to the Service and / or utilized the Application for a particular period of time, as determined by Us, in Our sole discretion.
(5) Our customer service employees are here to make Your online experience enjoyable by providing assistance and guidance to You. When speaking to Our customer service employees on the telephone or communicating with them by any other means, You agree not to be abusive, obscene, profane, offensive, sexually oriented, threatening, harassing or racially offensive. Should any of Our customer service employees feel, at any point, threatened or offended by Your conduct, We reserve the right to immediately terminate Your membership and You shall not be entitled to the refund of any payments made.
We are entitled to investigate and terminate Your membership if You have misused the Service, or behaved in a way which could be regarded as inappropriate, unlawful or illegal. The following is a partial, but not exhaustive, list of the types of actions that are illegal or prohibited under this Agreement:
You will not harass or impersonate any person or entity. You will not use any manual or automatic device or process to retrieve, index, data mine, or, in any way reproduce or circumvent the navigational structure or presentation of the Service, the Application, or its contents. You will not express or imply that any of Your statements are endorsed by Us, without Our specific prior written consent. You will not interfere with or disrupt any Service or the Application, Our servers or networks. You will not post, distribute or reproduce, in any way, any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. You will not remove any copyright, trademark or other proprietary rights notices contained in the Service or Application or forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Service or the Application. You will not use meta tags or code or other devices containing any reference to Us or the Service or the Application in order to direct any person to any other website for any purpose. You will not modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service, the Application or any related piece of software or cause or enable others to do so. You will not post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm or limit the functionality of any computer software or hardware.
INDEMNITY BY USER: You will defend, indemnify, and hold Us and Our officers, directors, employees, agents, subsidiaries, joint ventures and third parties harmless, for any losses, costs, liabilities or expenses relating to or arising out of any third party claim concerning Your use of the Service and the Application, including:
(I) Your breach of this Agreement; (II) any allegation that any materials that You submit to Us or transmit to the Service or through the Application infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (III) Your activities in connection with the Service and the Application. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person
RELEASE: If You have a dispute with one or more of Our Users, you release Us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
ONLINE CONTENT: Opinions, advice, statements, offers, or other information or content made available through the Service, but not directly by Us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION ON THE SERVICE / APPLICATION AND WE NEITHER ADOPT NOR ENDORSE, NOR ARE WE RESPONSIBLE FOR, THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN US. UNDER NO CIRCUMSTANCES ARE WE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM ANY PERSON’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICE OR TRANSMITTED TO USERS.
WE RESERVE THE RIGHT, BUT WE HAVE NO OBLIGATION, TO MONITOR THE MATERIALS POSTED IN THE PUBLIC AREAS OF THE SERVICE / APPLICATION. WE SHALL HAVE THE RIGHT TO REMOVE ANY SUCH MATERIAL THAT, IN OUR SOLE DISCRETION, VIOLATES, OR IS ALLEGED TO VIOLATE, THE LAW OR THIS AGREEMENT. NOTWITHSTANDING THIS RIGHT, YOU REMAIN SOLELY RESPONSIBLE FOR THE CONTENT OF THE MATERIALS YOU POST IN THE PUBLIC AREAS OF THE SERVICE/APPLICATION AND IN YOUR PRIVATE EMAIL MESSAGES. EMAILS SENT BETWEEN YOU AND OTHER USERS THAT ARE NOT READILY ACCESSIBLE TO THE GENERAL PUBLIC MAY BE REVIEWED BY US FOR COMPLIANCE WITH THIS AGREEMENT, BUT WILL BE TREATED BY US AS PRIVATE TO THE EXTENT REQUIRED BY APPLICABLE LAW.
INTELLECTUAL PROPERTY. All intellectual property rights in and to the Service and Application are and shall be owned by Us, absolutely. Those rights include, but are not limited to, database rights, copyright, design rights (whether registered or unregistered), patents, trademarks (whether registered or unregistered) and other similar rights, wherever existing in the world, together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Service and Application are the property of their respective owners.
NOTICE OF PROCEDURE FOR MAKING A CLAIM OF COPYRIGHT INFRINGEMENT. If you believe that any content in the Application or associated with the Service constitute work that is owned by you or a third party, and is displayed without proper authorization, please send the following information to the attention of the Copyright Agent noted below:
1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
3. a description of where the material that you claim is infringing is located on this Web Sites;
4. your address, telephone number, and email address;
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. 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.
Spark Networks Copyright Agent
Spark Networks USA, LLC
PO BOX 540, LEHI UT 84043 UNITED STATES
By email: firstname.lastname@example.org
DISCLAIMERS: WE PROVIDE THE SERVICE AND APPLICATION ON AN “AS IS” BASIS AND GRANT NO WARRANTIES OF ANY KIND, EXPRESSED, IMPLIED OR STATUTORY, IN ANY COMMUNICATION WITH OUR REPRESENTATIVES, OR US OR OTHERWISE WITH RESPECT TO THE SERVICE. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, WE DO NOT WARRANT THAT YOUR USE OF THE SERVICE OR APPLICATION WILL BE SECURE, UNINTERRUPTED, ALWAYS AVAILABLE OR ERROR-FREE, OR THAT THE SERVICE OR APPLICATION WILL MEET YOUR REQUIREMENTS OR THAT ANY DEFECTS IN THE SERVICE OR APPLICATION WILL BE CORRECTED. WE DISCLAIM LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, CONNECTIVITY AND AVAILABILITY.
Although each user must agree to Our terms and conditions, We cannot guarantee that each user is at least the required minimum age, nor do we accept responsibility or liability for any content, communication or other use or access of the Service or Application by persons under the age of 18 in violation of this Agreement. Also, it is possible that other users (including unauthorized users, or “hackers”) may post or transmit offensive or obscene materials through the Service or Application and that You may be involuntarily exposed to such offensive or obscene materials. It also is possible for others to obtain personal information about You due to Your use of the Service or Application. Those others may use your information for purposes other than what You intended. We are not responsible for the use of any personal information that You disclose on the Service. Please carefully select the type of information that You post on the Service, through the Application or release to others. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER USERS OR USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE SERVICE, APPLICATION OR OTHERWISE.
LIMITATION OF LIABILITY:TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF PROGRAMS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR SERVICE INTERRUPTIONS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE OR APPLICATION, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR THE SERVICE DURING THE TERM OF YOUR MEMBERSHIP TO THE MAXIMUM EXTENT PERMITTED BY LAW. WE DO NOT CONDUCT BACKGROUND CHECKS ON USERS REGISTERING FOR THE SERVICE OR USING THE APPLICATION IN ANY WAY. ANY ATTEMPT BY SPARK TO SCREEN USERS IS NOT A GUARANTEE OF SAFETY ON THE WEBSITE. YOU ARE RESPONSIBLE FOR YOUR OWN SAFETY ON THE SERVICE OR APPLICATION AND WHEN MEETING OTHER USERS IN PERSON. WE WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL, INCLUDING BY NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF THE USE OF THIS SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF YOUR COMMUNICATIONS WITH AND/OR INTERACTIONS WITH ANY OTHER USER OF THE SERVICE OR APPLICATION, OR ANY INDIVIDUAL YOU MEET VIA THE SERVICE OR APPLICATION. COMPLAINTS: To resolve a complaint regarding the Service, You should first contact Our customer service department by emailing email@example.com.
RESOLUTION OF DISPUTES:
(a) Arbitration of Any And All Disputes (Other Than Certain Intellectual Property Disputes As Defined Below, And Claims That May Be Adjudicated In Small Claims Court).
This provision shall apply to the resolution of any dispute arising out of or in any way related to the Application, the Service, this Agreement, any amendments or addenda thereto, and the subject matter hereof, including without limitation any contract, tort, statutory or equity claims between You and Us or Our officers, directors, employees, agents, subsidiaries, or joint ventures (the “Dispute”); provided, however, that any claims specifically described in subparagraph (b) below will not be included in the definition of Dispute. You may also assert claims in small claims court if your claims qualify. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute shall be subject only to binding arbitration. The parties expressly agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding to resolve any Dispute in any court. In the event of any Dispute, both parties agree that the arbitration provision in this Agreement will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (“FAA”) to the maximum extent permitted by applicable law.
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, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive, or declaratory relief in an appropriate court of law. This provision shall not prevent either party from filing a petition in court to confirm an arbitration award.
The parties expressly agree that any Dispute is personal to them, and any Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. If Your agreement to waive any right to a jury trial or to participate in a class action is found to be unenforceable, then the entirety of this arbitration section will be null and void and neither You nor We will be entitled to arbitrate our dispute.
The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that You and We mutually agree upon. If, after making a reasonable effort, You and We are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules (“Commercial Rules”) and, when deemed appropriate by the arbitration forum or arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Consumer Procedures”), or the appropriate rules of any alternative arbitration forum selected by You and Us or appointed by a court, subject to the following modifications:
1. The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least five (5) years of legal experience in the resolution of commercial disputes.
2. As limited by the FAA, the terms of this Agreement, and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute. This does not include the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this agreement as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
3. The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary and appropriate.
4. The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) shall be entitled to recover its reasonable attorneys’ fees and costs incurred in any of the following circumstances: (i) a motion which any party is required to make in any court to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated herein
5. We will pay the amount of any arbitration costs and fees charged by the AAA for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. In no event will We pay for Your attorneys’ fees unless required by law.
To begin an arbitration proceeding, You must send a letter requesting arbitration and describing your claim to: Spark Networks USA, LLC PO BOX 540, LEHI UT 84043 UNITED STATES Attn: Legal. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The AAA Commercial Rules and Consumer Procedures, the forms You may need to begin the arbitration proceeding, and other information about the AAA, are available from the AAA, which can be contacted by mail at 1633 Broadway, Floor 10, New York, New York 10019, by telephone at (800) 778-7879, or through its website at www.adr.org.
(b) This Agreement does not require You or Us to submit to arbitration any Dispute involving Our intellectual property rights in and to the Application or the Service, including without limitation (1) claims of infringement or misappropriation of any United States or foreign copyright, patent, trade secret, trademark, service mark or trade dress, (2) claims alleging violations of Title 17 of the United States Code, Sections 1201 and/or 1202, or of any similar foreign law, or (3) in any matter that involves any of the foregoing claims, for resolution or decision of any question of fact or law required to resolve such claim, including, but not limited to, questions required to decide or rule with respect to the infringement, misappropriation, validity, enforceability or ownership of any copyright, patent, trade secret, trademark, service mark or trade dress or with respect to any remedy or relief at law or in equity for any such infringement or misappropriation or for any violation of such Sections 1201 and/or 1202.
(c) With the exception of the provision above that the enforceability of this section on “Resolution of Disputes” is governed both procedurally and substantively by the FAA to the maximum extent permitted by applicable law, this Agreement otherwise will be construed and enforced in accordance with the laws of the State of California applicable to contracts entered into and performed in California to the maximum extent permitted by law (and without giving effect to California’s conflict of law principles). This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
(d) You and We acknowledge and agree that any violation of this “Resolution of Disputes” section of this Agreement may cause the parties irreparable harm, and therefore You and We agree that the parties will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security, in addition to and without prejudice to any other rights or remedies that the parties may have for a breach of the “Resolution of Disputes” section of this Agreement.
(e) With the exception of Your agreement to waive any right to a jury trial or to participate in a class action, if any other provision in this RESOLUTION OF DISPUTES section is held to be illegal, invalid or unenforceable, such provision shall be fully severable, the RESOLUTION OF DISPUTES section shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this section, and the remaining provisions of this section shall remain in full force and effect. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of the RESOLUTION OF DISPUTES section a legal, valid and enforceable provision as similar as possible to the former provision.
LIMITATION OF TIME PERIOD TO COMMENCE ANY DISPUTE: Regardless of any statute of limitations or law to the contrary, and to maximum extent permitted by applicable law, any Dispute arising out of or related to the Application, the Service, or this Agreement must be filed within six (6) months after the date in which the incident giving rise to the Dispute occurred ; provided that, if the substantive law applicable to the arbitration prohibits the parties from agreeing to this limitations period, then the limitations period under the applicable substantive law shall control. The failure of a party to file an arbitration claim within the applicable limitations period shall constitute a waiver by that party of its right to bring such a claim relating to any Dispute in any form, and a complete bar to any claim based on any Dispute, and the arbitrator shall not have jurisdiction to make a determination for a party that has not brought its Dispute for determination within the applicable limitations period.
SEVERABILITY: If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect.