TipTags End User License Agreement
Last Updated: April 30, 2017
Welcome, and thank you for your interest in TipTags Inc. (“TipTags,” “we,” or “us”) and our website at www.tiptags.co (“Site”); our mobile applications (“App”); and any related websites, networks, applications, and other services provided by us (collectively, the “Service”). This End User License Agreement is a legally binding contract between you and TipTags regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS OF SERVICE AND END USER LICENSE AGREEMENT CAREFULLY.
Agreement Overview. As provided in greater detail in these Terms (and without limiting the express language of the Terms below), you agree and acknowledge that these Terms include the following provisions:
- disputes arising hereunder will be resolved by binding arbitration, and BY ACCEPTING THESE TERMS, YOU AND TIPTAGS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury (as set forth in Section 16);
- the Service is licensed, not sold to you, and you may use the Service only as set forth in these Terms (as set forth in Section 4);
- your use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility;
- the Service is provided “AS IS” and “AS AVAILABLE” without warranties of any kind and TipTags’s liability to you is limited (as set forth in Sections 14 and 15); and
- if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple,” below (as set forth in Section 19).
1. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least 18 years old; (ii) you have not previously been suspended or removed from the Service; and (iii) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
2. Accounts and Registration.
2.1 TipTags Account. To access some features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
3.1 Limited License. Subject to your complete and ongoing compliance with all the Terms, TipTags grants you: (i) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install one copy of the App(s) downloaded from a legitimate marketplace, and to use such App so installed or that may have been pre-installed on your mobile device, solely in object code format and solely for your personal, non-commercial use for lawful purposes, on mobile devices that you own or control, and (ii) permission to access and use the Service for your personal use.
3.2 License Restrictions. Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, or publicly perform the App or any part of the Service; (ii) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App or the Service, or make or attempt to make any modification to or derivative work of the App or the Service; or (iii) interfere with or circumvent any feature of the App or the Service, including without limitation any security or access control mechanism. You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed. The term App, as used herein, includes any update or modification to the App made available to you by TipTags (unless provided with separate terms). If you are prohibited under applicable law from using the App or the Service, you may not use them.
3.3 Carrier Services and Fees. TipTags does not provide you with the equipment to use the App. You are responsible for complying with any third party terms of service and paying all fees charged by third parties to access and use the App (e.g., charges by Carriers). Without limiting the foregoing, you are solely responsible for the payment of all applicable fees associated with any Carrier service plan you use in connection with your use of the Service (such as data, SMS, MMS, roaming, and other applicable fees charged by the Carrier). Accordingly, you should use care in selecting a service plan offered by your Carrier.
3.4 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant TipTags an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
5. General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
5.1 Price. TipTags reserves the right to determine pricing for the Service. TipTags will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. TipTags may change the fees for any feature of the Service, including additional fees or charges; provided that TipTags gives you advance notice of changes before they apply. TipTags, at its sole discretion, may make promotional offers with different features and different pricing to any of our customers. These promotional offers, unless made to you, will have no bearing whatsoever on your offer or contract.
5.2 Authorization. You authorize TipTags or our payment processor to charge all sums as described in these Terms or published on the website for the orders that you make and any level of Service you select, to the payment method specified in your account. If you pay any fees with a credit card, TipTags or our payment processor may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
5.3 Subscription Services. The Service may provide recurring payments for periodic charges (“Subscription Services”). If you activate or update Subscription Services through the Service, you authorize TipTags or its payment processor to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. For information on the “Subscription Fee”, please see our support page. Your account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. TipTags or its payment processor will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your account information). You may cancel your Subscription Services by changing your subscription under the settings menu, or contacting us at: email@example.com.
5.4 Delinquent Accounts. TipTags reserves the right to suspend or terminate access to paid Services for any accounts for which any amount is due but unpaid. In addition to the amount due for such Service, such accounts will be charged with fees or charges that are incidental to any chargebacks or collection of any such unpaid amounts including collection fees.
6. Ownership; Proprietary Rights. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by TipTags are protected by intellectual property and other laws. All Materials included in the Service are the property of TipTags or our third-party licensors. Except as expressly authorized by TipTags, you may not make use of the Materials. TipTags reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
7.1 Third Party Services and Linked Websites. TipTags may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that may allow you to link your account on TipTags with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are not responsible for any third party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
7.2 Open Source Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining such Open Source Components under the applicable third-party licenses or to limit your use of such Open Source Components thereunder.
8. User Content
8.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
8.2 Prohibited User Content. You agree not to submit User Content of a commercial nature (including advertising) unless TipTags grants you permission in writing to do so, and such User Content strictly complies with these Terms. You agree not submit User Content that:
a. poses a risk to a person’s safety, security or health;
b. identifies any other person(s) without obtaining such person(s)’s express written consent to the disclosure of their personal information, or pertains to minors and identifies minors or their personal information, including their full name, age, address or contact information;
c. is unlawful, defamatory, libelous or invades the privacy of others, or otherwise violates the rights of a third party, including intellectual property rights;
d. is harassing, offensive, threatening or vulgar;
e. is characterized by, or that encourages racism or discriminates on the basis of race, origin, ethnicity, nationality, religion, gender, occupation, sexual orientation, illness, physical or mental disability, faith, political view or socio-economical class;
f. encourages criminal behavior or conduct that would constitute a criminal offense under any law, or could give rise to civil liability or other lawsuit (for example, content that encourages trespassing);
g. falsely expresses or implies that such content is sponsored or endorsed by TipTags; or
h. violates Section 9.
ADDITIONALLY, YOU ACKNOWLEDGE AND AGREE THAT USER CONTENT SUBMISSIONS MAY NOT BE SENT WHILE DRIVING OR OPERATING ANY VEHICLE, AND MAY ONLY BE SENT FROM AN APPROPRIATE LOCATION PERMITTED BY LAW. USER CONTENT MAY ALSO BE SENT BY A PASSENGER OTHER THAN THE DRIVER, PROVIDED IT DOES NOT INTERFERE WITH THE DUE COURSE OF DRIVING AND DOES NOT DISTRACT THE DRIVER.
8.3 Limited License Grant to TipTags. By submitting, posting or publishing User Content, you grant TipTags a worldwide, non-exclusive, royalty-free, irrevocable, perpetual, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
8.4 Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.5 User Content Representations and Warranties. We expressly disclaim any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of posting or publishing User Content. By submitting, posting, publishing or sharing User Content, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize TipTags and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by TipTags, the Service, and these Terms; and
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and
c. your User Content is accurate and up to date, is not fraudulent, misleading, unlawful, inappropriate, or obscene, and does not violate any law or regulation, constitute false advertising or any other unfair business practice or violate Sections 8.2 or 9.
8.6 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. TipTags may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against TipTags with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, TipTags does not permit copyright-infringing activities on the Service.
8.8 Backups. You are solely responsible for maintaining backups of your User Content outside the Service, and TipTags will have no liability whatsoever to you arising out of or in connection with any loss, compromise, or corruption of any data you may submit, receive, transmit, or store through the Service. Once you terminate your account, you may no longer have access to retrieve or obtain any of your User Content.
9. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
a. SEND ANY CONTENT (INCLUDING TAGS RELATED TO TRAFFIC OR ROUTES) OR CLICK ON ANY LINKS IN THE SERVICE WHILE DRIVING;
b. bully, intimidate, harass, defame, abuse, stalk any user or third party or post any User Content for the purpose of doing the same, impersonate any third party, or disclose sensitive personal information of a third party or another user;
c. interfere with or violate any third party or other users’ right to privacy or other rights, including, without limitation, by infringing or misappropriating any third party intellectual property right or harvesting or collect personal information about visitors or users of the Service without their express consent, including using any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, or data-mine;
d. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
e. post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
f. interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
g. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) collecting personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
h. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
i. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
j. frame or mirror any part of the Service without TipTag’s prior express written authorization;
k. create a database by systematically downloading and storing all or any of the User Content or Materials from the Service;
l. forward any data generated from the Service without the prior written consent of TipTags;
m. transfer or assign your Service accounts’ password, even temporarily, to a third party;
n. use the Service for any immoral or unauthorized purpose;
o. use the Service, Materials or the Content for non-personal or commercial purposes without TipTag’s express prior written consent
p. attempt to do any of the acts described in this Section 9 or assist, encourage or permit any person in engaging in any of the acts described in this Section 9.
10. Digital Millennium Copyright Act
10.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:
ATTN: Copyright Agent (Copyright Notification)
2140 North Hollywood Way, #11073
Burbank, CA 91510
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
10.2 Repeat Infringers. TipTags will promptly terminate the accounts of users that are determined by TipTags to be repeat infringers.
11. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Term, Termination and Modification of the Service
12.1 Term. These Terms are effective beginning when you accept the Terms or download, install, access or use the Service, and ending when terminated as set for in Section 12.2.
12.2 Termination. If you violate any provision of these Terms, your account and these Terms automatically terminate. In addition, TipTags may, at its sole discretion, terminate these Terms, your account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at firstname.lastname@example.org.
12.3 Effect of Termination. Upon termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Service; (ii) you will no longer have access to your account; (iii) you must remit to TipTags and unpaid amounts due prior to termination; and (iv) upon termination of these Terms, all payment obligations accrued prior to termination and Sections 3.4, 6, 8, 12.3, 13, 14, 15, 16 and 17 will survive.
12.4 Modification of the Service. TipTags reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. If we discontinue the Service, and you have pre-paid for Subscription Services, we will refund you a pro-rata portion of such fees for any cancelled subscriptions. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
13. Indemnity. You are responsible for your use of the Service, and, to the fullest extent permitted by law, you will defend and indemnify TipTags and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “TipTags Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Claims”) brought by a third party arising out of or connected with: (i) your use of the Service not in compliance with these Terms; (ii) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (iii) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (iv) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those Claims.
14. Disclaimers; No Warranties
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, TIPTAGS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TO THE FULLEST EXTENT PERMITTED BY LAW, TIPTAGS DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF OR THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TIPTAGS DISCLAIMS ANY WARRANTIES RELATING TO THE ACCURACY OF ANY MAPS, DIRECTIONS, TAGS, TIPS, DIRECTIONS, OR OTHER INFORMATION ON THE SERVICE. FOR INSTANCE, USERS MAY SUBMIT INACCURATE TAGS, USER CONTENT OR REPORTS, AND EXISTING PEDESTRIAN WALKWAYS AND ROADS MAY BE MISSING FROM THE MAPS AVAILABLE ON THE SERVICE; SUCH ERRORS AND OMISSIONS ARE INHERENT TO ANY COMMUNITY-BASED SERVICE THAT OPERATES ON USERS’ POSTS AND ON THE INFORMATION PROVIDED BY THEM.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR TIPTAGS ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TIPTAGS ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE(S) USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THE MATERIALS OR CONTENT.
NOTWITHSTANDING THE FORGOING TIPTAGS DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT TIPTAGS IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TIPTAGS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TIPTAGS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 16.4(iii) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TIPTAGS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO TIPTAGS FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and TipTags in the most expedient and cost effective manner, you and TipTags agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TipTags ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, AND THAT THIS AGREEMENT WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Arbitrator. Any arbitration between you and TipTags will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TipTags. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or electronic mail (“Notice”). TipTags’s address for Notice is: TipTags Inc., CT Corporation System, 1 Corporate Center, Hartford, CT 06103 or email@example.com. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or TipTags may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or TipTags must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, TipTags will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by TipTags in settlement of the dispute prior to the arbitrator’s award; or (iii) $15,000.
16.5 Fees. If you commence arbitration in accordance with these Terms, TipTags will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse TipTags for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.6 No Class Actions. YOU AND TipTags AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TipTags agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.7 Modifications to this Arbitration Provision. If TipTags makes any future change to this arbitration provision, other than a change to TipTags’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to TipTags’s address for Notice, in which case your account with TipTags will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.8 Enforceability. If Section 16.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void.
17.1 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and TipTags submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
17.3 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.5 Contact Information. The Service is offered by TipTags Inc., located at 10153 ½ Riverside Drive, Suite 452, Toluca Lake, CA 91602. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org. You can access a copy of these Terms by clicking here: [www.tiptags.co/terms-of-service]
17.6 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
18. Notice Regarding Apple. This Section 19 only applies to the extent you are using our App on an iOS device. You acknowledge that these Terms are between you and TipTags only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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.