Effective Date: February 2, 2017
The following terms of service constitute a legally binding agreement (the “User Agreement”) between you (“you,” or “your”) and TINYMEDIA INC (“Tinymedia,” “we,” “us” or “our”), a Delaware corporation, governing your use of the Tinymedia website or websites (e.g., www.tinycall.com and any other websites that we own or operate) and technology platform (collectively, the “Website”,“Websites”, “Software” and/or “Tinymedia Platform”).
1. IMPORTANT LEGAL NOTICE REQUIREMENT
PLEASE READ THIS USER AGREEMENT CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN THE SECTION TITLED "DISPUTE RESOLUTION BY BINDING ARBITRATION," WHICH REQUIRES THAT DISPUTES ARE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL AND NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED AT THE END OF THE SECTION TITLED "DISPUTE RESOLUTION BY BINDING ARBITRATION."
BY ACCESSING OR USING THIS WEBSITE, OR SERVICES PROVIDED VIA OUR WEBSITE, YOU AGREE TO BE BOUND BY THIS USER AGREEMENT AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS USER AGREEMENT IN THEIR ENTIRETY, DO NOT USE ANY TINYMEDIA PROVIDED SERVICE, INCLUDING THIS WEBSITE.
Welcome to TinyMedia’s TinyCall, a method to run your business from your personal cell phone. Through www.tinycall.com and any other websites we own or operate we provide various Internet-based and/or software services to help you improve or modify the functionality of your personal cell phone(the “Service” or “Services”). Use of the Website is governed by this TINYMEDIA User Agreement, which includes its Exhibits (the “Agreement”). The Website lets you purchase subscription services and/or software (the “Product” or “Products”) for use on your personal cell phone.
This product is only for use in the United States of America. All users must be physically located and based within the United States of America. All user sign ups must be from a valid United States of America area code and physically located and based within the United States of America.
3. GENERAL TERMS AND CONDITIONS
I. This Agreement
A. Acceptance. This Agreement establishes the terms, conditions, rights, and responsibilities applicable to your use of the Website. To use the Website, you must accept this Agreement. If you do not accept this Agreement you are not authorized to use the Website or the Services.
B. Modification or Amendments. We may change this Agreement at any time, for any reason.
C. Age and Capacity Requirements. No one under the age of 18 may use the Website, and use by individuals under 18 is strictly prohibited. By using the Website, you represent and warrant that you meet the age requirements and are able to enter into legal contracts.
E. Earnings and Affiliate Policy and Disclaimer. You acknowledge and agree to the Earnings & Affiliate Policy and Disclaimer.
F. Breach. Your breach of this Agreement results in the automatic termination of the rights and licenses granted to you under this Agreement.
II. Pricing and Strict No-Refund Policy
A. No Refunds. There are no refunds on your digital download or digital downloads or software or other Products or Services. You cannot return a digital download or software/Products/Services or receive a refund after any software or services or products have been made available to you (e.g., sent to you). Your purchase constitutes agreement to these terms. There are no refunds under any circumstance.
B. Prices. Prices listed are subject to correction or change without notice. Additional service charges may apply. Customer should check online at www.tinycall.com for current price information. International orders are not permitted. TINYMEDIA reserves the right to vary its prices at anytime with or without notice. Customer accepts responsibility for all costs relating to accessing or using the product (e.g., phone minutes, phone services).
C. Sales Tax. Customer is responsible for payment of all applicable local and state taxes (if any), or for providing a valid sales tax exemption certificate if applicable. When placing an order, customer shall indicate which product or products are subject to tax exemption. Customer is solely responsible (i) for determining what, if any, taxes or fees apply; and (ii) assessing, collecting, reporting, or remitting taxes to the appropriate tax authority. TINYMEDIA is not obligated to nor will TINYMEDIA determine the applicability of any taxes, or calculate, collect, report, or remit any taxes to any tax authority arising from any transaction (except as required by law), but TINYMEDIA may withhold any amounts that TINYMEDIA deem appropriates to cover such taxes. Pursuant to the Internal Revenue Code, TINYMEDIA may be required to reporting with legal entities or persons that occur. TINYMEDIA will report as required by the Internal Revenue Service.
III. Rights and Limited Licenses
A Intellectual Property. We own all intellectual property and other rights, title and interest in and to the Website, the Services including, but not limited to, the trademark, the Website copyrights, the signage, and technologies used to provide the Services. You do not have, and will not acquire, any right, title or interest in or to any of our intellectual property except as specifically detailed in this Agreement. You have a limited, non-exclusive, revocable license to access and use the Website and the signage in accordance with this Agreement. You shall have no right, title, or interest in the trade names, trademarks, trade dress, copyrights, patents, domain names, product names, catalogs or any other intellectual property rights (“IP”) reserved by TINYMEDIA, or any IP owned by manufacturers and/or suppliers to TINYMEDIA. All materials contained in TINYMEDIA catalogs or on its Websites are subject to the ownership rights of TINYMEDIA and its manufacturers and/or suppliers. Customer shall have no right to copy or use any IP of TINYMEDIA or its manufacturers and/or suppliers without TINYMEDIA 's permission.
B. Proprietary Rights and Trademark License
All intellectual property rights in the TINYMEDIA Platform shall be owned by us absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), 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 TINYMEDIA Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of TINYMEDIA. TINYMEDIA shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
TINYMEDIA, TINYMEDIA logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of TINYMEDIA in the United States and/or other countries (collectively, the “TINYMEDIA Marks”). If you purchase a digital download of the software, Services, or Products, TINYMEDIA grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to use the notice in a non-commercial manner, in your personal home for single remodeling project (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without TINYMEDIA’s prior written permission, which it may withhold in its sole discretion. The TINYMEDIA Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that TINYMEDIA is the owner and licensor of the TINYMEDIA Marks, and that your use of the TINYMEDIA Marks will confer no additional interest in or ownership of the TINYMEDIA Marks in you but rather inures to the benefit of TINYMEDIA. You agree to use the TINYMEDIA Marks strictly in accordance with TINYMEDIA’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that TINYMEDIA determines to nonconforming or otherwise unacceptable.
You agree that you will not:
(i) create any materials that incorporate the TINYMEDIA Marks or any derivatives of the TINYMEDIA Marks other than as expressly approved by TINYMEDIA in writing;
(ii) use the TINYMEDIA Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the TINYMEDIA Marks other than in accordance with the terms, conditions and restrictions herein;
(iii) take any other action that would jeopardize or impair TINYMEDIA’s rights as owner of the TINYMEDIA Marks or the legality and/or enforceability of the TINYMEDIA Marks, including, without limitation, challenging or opposing TINYMEDIA’s ownership in the TINYMEDIA Marks;
(iv) apply for trademark registration or renewal of trademark registration of any of the TINYMEDIA Marks, any derivative of the TINYMEDIA Marks, any combination of the TINYMEDIA Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the TINYMEDIA Marks;
(v) use the TINYMEDIA Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in TINYMEDIA’s sole discretion. If you create any materials bearing the TINYMEDIA Marks (in violation of this Agreement or otherwise), you agree that upon their creation TINYMEDIA exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the TINYMEDIA Marks or derivative works based on the TINYMEDIA Marks.
C Submissions. You grant us the perpetual, exclusive, sub-licensable right to use any questions, comments, suggestions, ideas, message board postings, web forms, contest entries, communications or any and all other materials or information that you submit to us for marketing and other promotional purposes, and waive any claim arising from or relating to use of your submissions.
D. Copyright. The copyright subsisting or which subsequently subsists in all documents, drawings, specifications, designs, programs, Products, or any other material prepared by us whether readable by humans or by machines in respect of the goods or work shall belong to us absolutely and they shall not be reproduced or disclosed or used in its original or translated form by you without our written consent.
IV. Use of the Website
A. Your use of the Website must be in accordance with this Agreement, and must comply with all applicable laws, rules and regulations.
B. You may not cause any harm to, or otherwise interfere with, the Website and/or Services by (but not limited to):
(i) introducing viruses or using programs or technology intended to disrupt or damage software or hardware;
(ii) modifying, creating derivative works from, reverse engineering, decompiling or disassembling any technology;
(iii) interfering with or disrupting the access of any user, host or network via any means including, but not limited to, overloading, flooding, spamming, scripting content creation, or linking to coupon sites;
(iv) creating an undue burden on the Website;
(v) collecting email addresses or other information using the Website;
(vi) impersonating another person or entity;
(vii) using meta tags, search terms, key terms, etc. containing the expression “TinyCall” or any of our other trademarks;
(viii) helping or encouraging any third party to engage in activity prohibited by this Agreement;
(ix) purchasing, registering, or bidding on any keywords, search terms or other identifiers including the term (or variations of) " TinyCall " (i.e. " tinycall", "tiny call", "TinyCall.com", etc. ..etc) for use in any search engine, portal, sponsored advertising service or other search or referral service.
(x) spam or attempt to deliberately subvert the Website or the Service with false, misleading, or unnecessarily repetitive information.
V. Representations and Warranties
A. Mutual Representations and Warranties. You represent and warrant to us, and we represent and warrant to you, that: (1) each of us has the full power and authority to enter into and perform this Agreement; (2) the execution of this Agreement and performance of our obligations will not breach, and does not conflict with, any other agreement or arrangement by which we are respectively bound; and (3) each of us understands and agrees that this Agreement is a legal, valid, and binding obligation enforceable by law according to its terms and conditions.
B. Your Representations and Warranties. You represent and warrant that:
1 your use of the Website does not infringe the rights of any third-party including, but not limited to, copyrights, trademarks, patents, trade secrets, and rights of privacy and publicity;
2 your use of the Website does not violate any applicable laws, regulations and rules including, without limitation, exploitation of the images or likeness of minors;
3 there are no pending or threatened lawsuits, claims, or demands involving, arising from or relating to your use of the Website; and
4 your use of the Website is and will at all times remain in full compliance with this Agreement.
VI. Disclaimers and Exclusions
A Modification of the Website or the Services. We may modify, change, suspend or discontinue any aspect of the Website or the Services at any time, with or without notice, without liability to you or anyone else. We may, with or without notice suspend, limit your access to, or terminate your access to the Website, the Product, or the Services for any reason, or no reason.
B Access. We are not obligated to monitor the transactions or communications made through the Website. However, we reserve the right to cancel any transaction, or remove or limit access to any Content, Products, or all or part of the Website at any time with or without notice and without any liability to you or any third party.
C Products Suitability and Compliance. You acknowledge that Jurisdictions have varying laws, codes and regulations governing reproduction, installation, and/or use of products for a particular purpose. TINYMEDIA does not guarantee and is not responsible for compliance or suitability of the Products it sells with any laws, codes or regulations, nor does TINYMEDIA accept responsibility for reproduction, installation and/or use of a product. It is your responsibility to review all applicable laws, codes and regulations for each relevant jurisdiction to be sure that the production, installation, and/or use involving the Products are compliant and suitable.
D. Marketing Disclaimer. Customer acknowledges and agrees that any advice, recommendation, information, data, testimonials, or work product provided on the Websites constitutes marketing and promotional materials that cannot and should not be relied upon for any purpose as it is intended purely for marketing and promotional purposes intended.
E. Disclaimer of Warranties and Accuracy of Data
Although the data found using any TinyCall access systems and/or Software/Product/Service have been produced and processed from sources believed to be reliable, no warranty, expressed or implied, is made regarding accuracy, adequacy, completeness, legality, reliability, or usefulness of any information. This disclaimer applies to both isolated and aggregate uses of the information. We provide this information on an “as is” basis. All warranties of any kind, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, freedom from contamination by computer viruses, and non-infringement of proprietary rights are disclaimed. Changes will be periodically made to the information herein; these changes may or may not be incorporated in any new version of the publication. If you have obtained information, originally created by us, from a source other than us, be aware that electronic data can be altered subsequent to original distribution. Data can also quickly become out-of-date. It is recommended that careful attention be paid to the contents of any data associated with a file, and that the originator of the data or information be contacted with any questions regarding appropriate use. If you find any errors or omissions, we encourage you to report them to our Web administrator at the Contact Us.
F. Disclaimer of Endorsement
From time to time, we may be the distributor of content sometimes supplied by third parties and users. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, users, or others, are those of the respective author(s) or distributor(s) and do not necessarily reflect those of the state or reflect those of our business and shall not be used for advertising or product endorsement purposes. Reference herein to any specific commercial products, process, or service by trade name, trademark, manufacturer, or otherwise, does not constitute or imply its endorsement, recommendation, or favoring (or disfavoring) by us.
G. Disclaimer of External Links and Affiliate Marketing
We are not responsible for the contents of any off-site pages referenced. The user specifically acknowledges that we is not liable for the defamatory, offensive, or illegal conduct of other users, links, or third parties and that the risk of injury from the foregoing rests entirely with the user. Links from our website(s) or social media accounts on the Web to other sites do not constitute an endorsement from us. These links are provided as an information service only. It is the responsibility of the Web user to evaluate the content and usefulness of information obtained from other sites. Our website(s) and social media contain links to other related Internet sites and resources. Since our website(s) and social media are not responsible for the availability of these outside resources or their contents, you should direct any concerns regarding any external link to its site administrator or webmaster.
From time to time we may engage in affiliate marketing offerings. It is our policy to abide and act in compliance with all FTC policies and regulations applicable to transparency in affiliate and earnings programming. We reserve all rights related to such offerings and marketing.
This disclaimer constitutes notice and your agreement that agree to be marketed to any and all affiliate relations we may have in our website(s), Services/Products/Software and/or technology platforms that you visit and/or use.
Whether you are a visitor or customer, you should assume that any and all links in this website are affiliate links. If you utilize these links and visit the resulting site, a cookie may be set in your web browser that will cause us to receive compensation or other form of earning if you make a purchase or other agreement or obligation to a third party. We are not liable and HAVE NO WARRANTY as to the usability or quality of any goods or services sold, leased, or offered for sale by any third party. Please also note that earnings from the sale of guides, ebooks or adverts may also occur.
H. Limitations on Security Measures
For site security purposes and to ensure that this service remains available to all users, our computer system may employ software programs to monitor network traffic to identify unauthorized attempts to upload or change information or otherwise cause damage.
I. Solicitation Prohibited
Use of our website/Services/Products/Software and/or information technology system to send unlawful faxes, any electronic communication, or email any entity (e.g. our business and its employees) is strictly prohibited.
J. Disclaimer Of Duty To Continue Provision Of Data
Due to the dynamic nature of the Internet, resources that are free and publicly available one day may require a fee or restricted access the next, and the location of items may change as menus, homepages, and files are reorganized. The user expressly agrees that use of our website(s) and social media is at the user’s sole risk. We do not warrant that the service will be uninterrupted or error free. The documents and related graphics published on this server could contain technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Our business and/or its respective programs may make improvements and/or changes in the information and/or programs described herein at any time.
K. Choice of Law
Construction of the disclaimers above and resolution of disputes thereof are governed by the laws of the State of Utah and of the United States. The laws of the State of Utah and of the United States shall apply to all uses of this data and this system. By use of this system and any data contained therein, the user agrees that use shall conform to all applicable laws and regulations and user shall not violate the rights of any third parties.
L. DISCLAIMER OF WARRANTIES. THE WEBSITES, THE PRODUCTS, AND THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". WE NEITHER REPRESENT NOR WARRANT THAT THE WEBSITES, THE PRODUCTS, AND THE SERVICES OR ITS OR THEIR USE:
(1) WILL BE UNINTERRUPTED;
(2) WILL BE FREE OF INACCURACIES OR ERRORS;
(3) WILL MEET YOUR REQUIREMENTS;
(4) WILL BE FIT FOR A PARTICULAR PURPOSE; OR
(5) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE
M. WE MAKE NO REPRESENTATIONS OR WARRANTIES OTHER THAN AS EXPRESSLY MADE IN THIS AGREEMENT, AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
N. Additional Disclaimers
The following disclaimers are made on behalf of TINYMEDIA, our affiliates, and each of our respective officers, directors, employees, agents, shareholders and suppliers.
We specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
We do not warrant that your use of the TINYMEDIA Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet your requirements, that any defects in the TINYMEDIA Platform will be corrected, or that the TINYMEDIA Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the TINYMEDIA Platform or Services.
TINYMEDIA is not responsible for the conduct, whether online or offline, of any User of the TINYMEDIA Platform or Services. You are solely responsible for your interactions with other Users.. By using the TINYMEDIA Platform and participating in the Services, you agree to accept such risks and agree that TINYMEDIA is not responsible for the acts or omissions of Users on the TINYMEDIA Platform or participating in the Services.
It is possible for others to obtain information about you that you provide, publish or post to or through the TINYMEDIA Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the TINYMEDIA Platform or through the Services. Please carefully select the type of information that you post on the TINYMEDIA Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content made available through the TINYMEDIA Platform, 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. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted on the TINYMEDIA Platform or otherwise disseminated by third parties. We reserve the right, but we have no obligation, to monitor the materials posted in the public areas of the TINYMEDIA Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
The TINYMEDIA Platform contains (or you may be sent through the TINYMEDIA Platform) links to other web sites owned and operated by third parties (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (“Third Party Content”). Such Third Party Sites and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third Party Sites or Third Party Content accessed through the TINYMEDIA Platform.
VII. Limitation of Liability
A We May Use Third-Party Services. We may use third-parties to provide certain services accessible through the Website, and will not be liable to you for their acts or omissions.
B LIMITATION OF LIABILITY. WE WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH YOUR USE OF THE WEBSITE, UNDER ANY THEORY OF LIABILITY, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT WILL IN ALL EVENTS BE LIMITED TO THE GREATER OF FIFTY DOLLARS ($50.00 USD) OR THE INVOICED AMOUNT PAID TO US FOR THE PRODUCTS GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY TO YOU IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
C. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE WILL NOT BE LIABLE FOR THE ILLEGAL, OFFENSIVE OR DEFAMATORY CONDUCT OF OTHERS, INCLUDING ANY SUCH CONDUCT BY YOU, AND THAT YOU BEAR ALL RISK AND LIABILITY ASSOCIATED WITH YOUR USE OF THE WEBSITES, THE PRODUCTS, AND THE SERVICES.
D. RELEASE. YOU HEREBY RELEASE TINYMEDIA AND ITS OWNERS, OFFICERS, DIRECTORS, MANAGERS, REPRESENTATIVES, AFFILIATES, SUCCESSORS, ASSIGNS, AGENTS, SUBSIDIARIES, SHAREHOLDERS, EMPLOYEES AND BUSINESS PARTNERS FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH YOUR USE OF THE WEBSITE, THE PRODUCTS, AND THE SERVICES. IF YOU ARE A RESIDENT OF CALIFORNIA, YOU WAIVE CALIFORNIA CIVIL CODE § 1542 WHICH STATES “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.”
You hereby agree to indemnify and hold TINYMEDIA and its owners, shareholders, directors, officers, managers, employees, representatives, agents, subsidiaries, affiliates, successors, business partners and assigns (the "Releasees") harmless from and against any and all damages, losses, costs or expenses (including, without limitation, attorneys' fees and costs at trial and on appeal) incurred in connection with any third-party suit, claim, demand or action brought against any of the Releasees arising from or relating to your use of the Website, the Services, the signage, your Content, or your breach of this Agreement (individually and collectively a “Claim”). TINYMEDIA has the right to control the defense, settlement, and resolution of any Claim, at your sole cost and expense. In no event may you settle or otherwise resolve any Claim without our express written permission. We may withhold any and all Payments due to you in enforcing your indemnification obligations.
All notices under this Terms of Service and Agreement must be in writing and delivered as follows:
4580 N Silver Springs Drive, Suite 200
Park City, UT 84098
Attention: General Counsel – TinyCall 0080
We may update the address for Notices set forth in this section from time to time.
X. Applicable law, Jurisdiction, and Venue.
This User Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Utah, in accordance with the Dispute Resolution by Binding Arbitration.
Any and all claims of infringement involving the Websites, the Products, and/or the Services shall be governed by and construed in accordance with applicable federal law, and shall be brought before a court of competent jurisdiction in the State of Utah.
The parties acknowledge that this User Agreement is evidence of a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted under this User Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., §§ 1-16).
XI. Assignment and Transferability.
You may not assign or otherwise transfer this Agreement.
XII. Dispute Resolution by Binding Arbitration.
PLEASE READ THIS "DISPUTE RESOLUTION BY BINDING ARBITRATION" PROVISION CAREFULLY, BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH TINYMEDIA AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.
THIS PROVISION PRECLUDES YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST TINYMEDIA. IT ALSO PRECLUDES YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST TINYMEDIA BY SOMEONE ELSE. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT DECISION. IT IS YOUR DECISION TO MAKE AND YOU SHOULD NOT RELY SOLELY ON THE INFORMATION PROVIDED IN THIS AGREEMENT, AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH AN ATTORNEY REGARDING THE CONSEQUENCES OF YOUR DECISION. YOU MAY OPT-OUT OF THIS ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS BELOW.
A. Scope of Arbitration. You and TINYMEDIA agree that any dispute, claim or controversy arising out of or relating to your access to or use of the Websites the Products, or the Services or to this Agreement or any other aspect of the parties’ relationship (a "Dispute"), shall be determined by arbitration, except that you and TINYMEDIA are NOT required to arbitrate any Dispute in which either party seeks equitable and/or legal or other relief for alleged violation of the Copyright Act, Lanham Act, or Patent Act or for state law claims of copyright, trademark, trade secret or unfair competition laws.
B. Small Claims Court. Notwithstanding this agreement to arbitrate, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
C. Applicable Arbitration Rules and Procedure. The arbitration shall be governed by the rules of JUDICIAL ARBITRATION AND MEDIATION SERVICE that are in effect at the time the arbitration is initiated (the “JUDICIAL ARBITRATION AND MEDIATION SERVICE Rules”), available at http://www.Judicial Arbitration and Mediation Service adr.com or by calling 1-800-352-5267, and under the rules set forth in this Arbitration Provision, except that JUDICIAL ARBITRATION AND MEDIATION SERVICE may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. If there is a conflict between the JUDICIAL ARBITRATION AND MEDIATION SERVICE Rules and the rules set forth in this Arbitration Provision, the rules set forth in this Arbitration Provision shall govern. You may, in arbitration, seek any and all remedies otherwise available to you pursuant to federal, state, or local laws. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Jefferson County, Kentucky, at your option.
D. Initiation of Arbitration Proceeding. If either You or TINYMEDIA decide to arbitrate a Dispute, we agree to the following procedure:
(i) Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at http://www.Judicial Arbitration and Mediation Service adr.com (the “Demand for Arbitration”).
(ii) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to Judicial Arbitration and Mediation Service at:
One Atlantic Center
1201 West Peachtree, NW, Suite 2650
Atlanta, GA 30309 USA
(iii) Send one copy of the Demand for Arbitration to the other party at the address set forth above in Notices or in accordance with that Section.
(iv) Hearing Format. In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
(v) Location of Arbitration and Applicable Rules. You and TINYMEDIA agree that such arbitration shall occur within Summit County, Utah. You may request to appear in such proceedings telephonically. You and TINYMEDIA agree that such arbitration shall be conducted by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Service, as modified by this Agreement.
D. Authority of Arbitrator. With the exception of class procedures and remedies as discussed below under "Waiver of Class Relief," the arbitrator shall have the authority to grant any remedy that would otherwise be available in court.
E. Allocation of Arbitration Fees. If you assert a Dispute as a consumer, you will only be required to pay arbitration fees of $250 of the fees (or whichever is the current fee) charged by JUDICIAL ARBITRATION AND MEDIATION SERVICE in connection with any arbitration under this section, and TINYMEDIA will bear all other costs charged by JUDICIAL ARBITRATION AND MEDIATION SERVICE or the arbitrator, including any remaining JUDICIAL ARBITRATION AND MEDIATION SERVICE Case Management Fee and half of the professional fees for the arbitrator's services. You will still be responsible for paying your own attorneys’ fees and the other half of the professional fees for services.
F. WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND TINYMEDIA AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS ARBITRATION PROVISION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL PARTIES TO AN ARBITRATION PROCEEDING.
G. Procedure to Opt-Out of Arbitration Provision. You may opt-out of this arbitration provision only by written Notice via U.S. Mail, or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.) to TINYMEDIA Inc., Attn: Legal Department, 4580 N Silver Springs Drive, Suite 200, Park City, Utah 84098. You must send such Notice within fifteen (15) days of your acceptance of this Agreement. You must sign and date the Notice, and include in it your name, address, and a clear statement that you do not wish to resolve disputes with TINYMEDIA through arbitration. If you do not follow this procedure by your deadline to do so, then you and TINYMEDIA shall both be bound by the terms of this section entitled Dispute Resolution by Binding Arbitration.
H. If any portion of this Section entitled "Dispute Resolution by Binding Arbitration" is found to be unenforceable, that provision shall be severed with the remainder of this Section remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Arbitration Provision shall be null and void. The terms of this Arbitration Provision shall otherwise survive any termination of this Agreement.
XIII. Entire Agreement. This Agreement contains our entire understanding and agreement regarding your use of the Website, and supersedes any and all prior agreements and understandings regarding its subject matter. No failure or delay by either of us in exercising any right, power or privilege under this Agreement will operate as a waiver of that right, power or privilege, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. We are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect.
XIV. Force Majeure. TINYMEDIA shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, civil disturbances, acts of terrorism (whether actual or threatened), governmental decrees or controls, regulatory changes, insurrections, epidemics, quarantines, illness, capital losses, shortages, communication or power failures or outages, security breaches, criminal actions, misinformation, wild animals, fires, accidents, personal injury, conflicts of interest, explosions, implosions, supplier actions, landlord actions, inability to procure or make available Products/Services/software or obtain permits and licenses, operation of law, inability to procure supplies or raw materials or services, severe weather conditions, legal or regulatory changes, catastrophic events, or any other circumstance or cause beyond the reasonable control of TINYMEDIA in the conduct of its business.
XV. Survival. All applicable sections of this Agreement survive any suspension, limitation of access to, termination, removal of Content or ban on your use of the Websites, the Products, and/or the Services. If any portion of these terms and conditions is found to be invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable term shall be severed from these terms and conditions, and the remaining terms and conditions shall be valid and fully enforceable as written.