ABOOMBA TERMS OF SERVICE AGREEMENT
Last Updated: January 1, 2014
Welcome to the Aboomba (“Aboomba”, “us”, or “we”) website located at aboomba.com (the “Site”). Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Site and our services accessible via our Site, which services allow you to view various merchants’ products advertised through the Site and to purchase such products through the Site, and, if specifically invited by Aboomba, to create and display on the Site, and promote to the public, customized lists of products offered by different merchants through the Site. If you are a Merchant (defined below) listing products through the Site, these Terms contain terms and conditions additional to those in your Merchant Agreement with us, and collectively with your Merchant Agreement govern your use of our Site and services. In such case, all capitalized words used but not defined in these Terms have the same meanings as in your particular Merchant Agreement with us. To make these Terms easier to read, the Site and our services are collectively called the “Services.”
Agreement to Terms
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you can’t use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Use of the Services
You may use the Services only if you are 18 years or older and capable of forming a binding contract with Aboomba and are not barred from using the Services under applicable law.
Using the Services; Payment Terms
Through the Services, you will be able to browse, and place orders for, different merchants’ products listed on the Site (each such merchant, a “Merchant”, and each such product, a “Product”). In order to place orders through the Services, you will be required to provide your personal details. In particular, you must provide your real name, phone number, e-mail address, and other requested information as indicated. When you place an order for a Product, Aboomba will collect your credit card details and pass them to its third-party payment service provider, who will charge your credit card account in connection with your order, and you agree to make all applicable payments in connection with any order you place. When you place an order through the Services, you represent that: (i) any credit card information you supply is true and complete; and (ii) you’ll pay the applicable price listed, as well as any shipping and handling charges and applicable taxes. Products purchased by you are for personal or gift use and not for commercial use. We reserve the right to restrict multiple quantities of a Product being shipped to any one customer or postal address.
Products and Pricing
Aboomba, or Merchants listing Products through the Services, may discontinue or stop offering any Product, or line of Products at any time and for any reason through the Site. Additionally, Merchant’s, and not Aboomba, are in charge of determining the prices for their Products, which prices can be changed at any time. Prices listed through the Services do not include any shipping and handling charges or applicable taxes, which charges and taxes will be communicated to you before you place your order.
Orders and Fulfillment
All of your orders for Products are subject to acceptance. Once you have placed your order, you will receive an email acknowledging the details of your order. This email is not an acceptance of your order, just a confirmation that we have received it. Acceptance of your order will occur upon our receipt of a shipping confirmation from the Merchant (at which time you will receive another email containing your tracking number and carrier information). If your order is on back order or comprised of “made-to-order” Products as contemplated in the next paragraph, you will receive an email indicating that this is the case, followed by another email from us upon our receipt of a shipping confirmation from the Merchant with respect to such order, containing your tracking number and carrier information. We reserve the right not to accept your order for a Product in the event, for example, that we or our third-party payment service provider are unable to obtain authorization for payment, that the Product ordered is out of stock, or that you do not meet the eligibility criteria set forth within these Terms. Furthermore, we may refuse to process your order or any transaction for any reason or refuse service to anyone at any time at our sole discretion. We will not be liable to you or any third party by reason of our withdrawing any Products from the Site, removing, screening, or editing any materials or content on the Site, refusing to process a transaction or order, or unwinding or suspending any transaction or order after processing has begun.
Within five (5) days of our receipt of your order through the Site: (i) we will provide you with an email notifying you that your order was rejected; or (ii) (a) if your order is accepted, that the applicable Products will be shipped to you (or we will notify you of back order status and provide you with an estimated shipping date for such backordered Products), or (b) if such order is comprised of “made-to-order” Products, we will notify you of the estimated shipping date for such Products and such Products will be promptly shipped to you upon completion of the manufacturing of the Products.
Merchants, and not Aboomba, are responsible for shipping Products ordered by you directly to the address you’ve designated in your order. Title and risk of loss will pass to you upon each Merchant’s tender of delivery of the Products to your designated address. Merchants, and not Aboomba, are responsible for the Products until title and risk of loss pass to you, and each Merchant will arrange all necessary transportation, packaging, and insurance for the Products. You may choose the method of shipment and timing of delivery for Products you order, and you will be charged shipping and handling charges accordingly based on your choices.
Damaged or Defective Product
Merchants, and not Aboomba, are responsible for: (i) any Product damage resulting from improper packing, storage or handling to the extent such damage is attributable to such Merchant’s failure to provide reasonably adequate Product storage and handling instructions; (ii) Product delivered to you in a misrepresented/mislabeled or nonsaleable condition; or (iii) deteriorated or otherwise defective Product (collectively, “Damaged or Defective Product”). You may be entitled to a refund or credit of the entire purchase price you paid for any Damaged or Defective Product, provided that you return such Damaged or Defective Product to the applicable Merchant in accordance with the “Returns and Refunds” procedures set forth herein.
Acceptance of Products by You
You have seven (7) days following delivery of the Products to notify the applicable Merchant of any discrepancies in the shipment quantity, any nonconformities of the Products with the applicable specifications, any defects in material or workmanship, any size mismatches, or any other reason for return of the Products. Any delivery of Products that are rejected by you may be returned in accordance with the “Returns and Refunds” procedures set forth herein.
Warranty Disclaimer with respect to Products
The Products purchased by you are not Aboomba’s products, and Aboomba disclaims any and all warranties relating to the Products purchased by you through the Services. Each Merchant is fully responsible for the Products it provides to you. You waive and release Aboomba and its subsidiaries, affiliates, partners, officers, directors, employees and agents from any and all injuries, damages, claims, liabilities, and costs such Products may cause you to suffer arising from or related to any act or omission of any Merchant in connection with the Merchant’s Products. Aboomba is not responsible for examining or evaluating, and Aboomba does not warrant the offerings of, any Merchant or Merchant Products or the content of any Merchant website to which you can link via the Services. Aboomba does not assume any responsibility or liability for the actions, Products, and content of Merchants or any other third parties.
Returns and Refunds
Any returns of, or refunds in connection with, Products you purchase through the Services will be handled directly between you and the applicable Merchant whose Product you purchased. Notwithstanding any other terms contained herein, you understand and agree that it is in each Merchant’s sole discretion as to which of its Products (if any) will be eligible for return for a refund or credit. Each Merchant has provided us with its standard return policy for its Products as part of the product information accompanying the listing of such Products for sale through the Site, and we will make such return policies available to you through the Site. Notwithstanding the foregoing, you agree that any and all shipping and handling charges are non-refundable, and that in the case of a return for a refund or credit, you will remain liable to the applicable Merchant for and your credit card will be charged for such shipping and handling charges.
From time to time, we may permit select individuals (each an “Affiliate”) to create and display on the Site their own customized lists of Products offered by different Merchants that are currently marketing Products through the Site (each such list, a “Guest Aboomba”). If we have extended an invitation to you to become an Affiliate and you have created an Account, you can create and publicly promote Guest Aboomba’s (including to your friends and through your networks), as permitted herein. If a user arrives at the Site and places an order for a Product via one of your Guest Aboomba’s, you may be entitled to a percentage of the revenue collected by Aboomba in connection with such order. We will provide you with a URL to use in connection with each of your Guest Aboomba’s, which will enable us to track such referrals.
Registration and Your Information
You may browse the Site and place orders for Products as a guest. However, in order to use the Services as an Affiliate, you must be specifically invited by Aboomba, and must create an account (“Account”).
It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that any users of the Services (including you) provide to be made available through the Services. Content includes without limitation User Content.
Content Ownership, Responsibility and Removal
Aboomba does not claim any ownership rights in any User Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Aboomba and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to Aboomba a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Aboomba on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Content from Social Media and Networking Sites
As an Affiliate you may link your Account to your accounts with certain third-party social networking services such as Facebook or Twitter (each an “SNS Account”) by either: (i) providing your SNS Account username (or userID) to Aboomba through the Services; or (ii) allowing Aboomba to access your SNS Account, as permitted under the applicable terms and conditions that govern your use of each SNS Account. You agree that you won’t disclose your SNS Account login information to Aboomba and/or grant Aboomba access to your SNS Account unless you are permitted to do so by the applicable SNS. Aboomba won’t have any obligation to pay any fees or be subject to any usage limitations imposed by SNS’s.
By linking your SNS Account to your Account, you understand that Aboomba will access, make available and store (if applicable) some of the content that you have provided to and stored in your SNS Account so that it is available on and through the Services via your Account. Unless otherwise specified in these Terms, all such content, if any, will be considered to be User Content for all purposes of these Terms. Depending on the SNS Accounts you choose and subject to applicable SNS privacy settings, personally identifiable information that you post to your SNS Accounts and information about your SNS friends will be available on and through your Account. Please note that if an SNS Account or associated service becomes unavailable or Aboomba’s access to such SNS Account is terminated by the third party service provider, then the content from your SNS Account will no longer be available on and through the Services. You may disable the connection between your Account and your SNS Accounts by adjusting the settings on your profile page in your Account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS ACCOUNT SERVICE PROVIDERS ASSOCIATED WTH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS ACCOUNT SERVICE PROVIDERS.
Rights in Content Granted by Aboomba
Subject to your compliance with these Terms, Aboomba grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to: (i) if you are a purchaser of Products or a Merchant, access and view the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes; and (ii) if you are an Affiliate, access, view, display and reproduce the Content solely in connection with your permitted use of the Services and the creation and promotion of Guest Aboomba’s as permitted herein.
If you choose, you may share links to Content on certain of your SNS Accounts, via SMS Messaging, and via email, through the social sharing functionality we’ve implemented through the Services.
Alerts and Notifications
As part of the Services, you may (if enabled) receive push notifications, text messages, alerts, emails, or other types of messages directly sent to you (“Push Messages”). You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services (with the possible exception of infrequent, important service announcements and administrative messages). Please be aware that third party messaging fees may occur depending on the message plan you have with your wireless carrier.
General Prohibitions and Aboomba’s Enforcement Rights
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
- Use, display, mirror or frame the Site, or any individual element within the Site or Services, Aboomba’s name, any Aboomba trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Aboomba’s express written consent;
- Access, tamper with, or use non-public areas of the Site, Aboomba’s computer systems, or the technical delivery systems of Aboomba’s providers;
- Attempt to probe, scan, or test the vulnerability of any Aboomba system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Aboomba or any of Aboomba’s providers or any other third party (including another user) to protect the Site, Services, or Content;
- Attempt to access or search the Site, Services, or Content or download Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Aboomba or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Aboomba trademark, logo URL or product name without Aboomba’s express written consent;
- Use the Site, Services, or Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Services;
- Collect or store any personally identifiable information from the Site or Services or from other users of the Site or Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
- Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Additional Terms Applicable to Merchants
The terms and conditions in this section apply to you only if you are a Merchant using our Services to list and market Products, and apply notwithstanding anything to the contrary in your Merchant Agreement.
Purchases, Commissions, and Payment
Use of Third Party Payment Processor. We will utilize Braintree Payment Solutions LLC (“Braintree”) for payment processing in connection with Orders. For each Order, Braintree will be responsible for collecting the applicable funds from the customer and disbursing the Balance to you and the Commission to us. In order for Aboomba and you to use Braintree’s payment processing services, you must enter into, and you agree to enter into, the Merchant Services Agreement (“MSA”) with Braintree and its sponsoring bank. The MSA is available at www.braintreepayments.com/agreements/merchant. By accepting these Terms, you agree: (a) that you have downloaded or printed the MSA, and (b) that you have reviewed and agree to the MSA. Please note that we are not a party to the MSA and that you, Braintree, and Braintree’s sponsoring bank are the three parties to the MSA and that we have no obligations or liability to you under the MSA. If you have questions regarding the MSA, please contact Braintree at 877.434.2894. As used herein, “Commission” means, for each Order, a percentage of the payment amount received by Braintree on behalf of Aboomba from a customer plus any credit card or other transaction processing fees required to be paid by Aboomba in connection with processing of such Order by Braintree; and “Balance” means, for each Order, the payments received by Braintree on behalf of Aboomba from a customer less the applicable Commission.
Customer Purchases. Braintree will, on our behalf, process the payment for all Orders through the Platform. We will collect the credit card information from each customer in connection with an Order, and pass this information to Braintree. You will be designated as the “merchant of record” for all Orders.
Commissions. We will deduct a Commission from all Orders as compensation for your use of the Platform. The applicable Commission will vary for each Product and is determined through the Platform prior to the Product being made available on the Site.
Payment. Braintree will pay you the Balance for each Order in accordance with the terms in this “Payment” section. All payments will be made in United States dollars and will be made via ACH or electronic funds transfer to the merchant account you designated through the Platform. You agree to maintain a valid and up-to-date merchant account to which payments can be remitted, as agreed to by us. Braintree will process the payment for each Order and hold such payment in escrow. Upon the expiration of the applicable return eligibility period, if no return authorization has been requested by the customer, Braintree will disburse the Balance to you and the Commission to us. If a return authorization is requested prior to expiration of the applicable return eligibility period, Braintree will continue to hold in escrow the applicable payment amounts while the return is processed. If a return is processed for a refund, the full amount for the returned items will be refunded to the customer (independently, you will receive the non-refundable shipping charge associated with the applicable Order, which Braintree will remit to you as a separate payment). For Orders consisting of Products not eligible for return for a refund, Braintree will disburse the Balance and Commission within thirty (30) days of our receipt of a Ship Confirmation for such Order. For purposes of clarity, the Balance for each Order will be paid only upon full shipment of all Products comprising an Order.
Taxes. You (depending on the state or locality involved) may have a legal obligation to collect and pay Taxes to the extent you have a sufficient presence or “nexus” in that state or locality. You are responsible for providing us with a list of all states or localities in which you have nexus; absent such a list, we will treat you as having nexus only in the state and locality in which your principal office address is located. In the case of any Taxes on Orders shipped to delivery points in states or localities where you have indicated you have a nexus, either Aboomba or Braintree will calculate, and Braintree will collect, the Taxes and remit the Taxes to you and pay such amounts to you and you will be responsible for paying and remitting such Taxes to the appropriate taxing authority or governmental agency. Neither Aboomba nor Braintree will be responsible for calculating or collecting any taxes or duties of any kind (including without limitation, sales, use, value-added or withholding taxes, tariffs or duties) associated with the importation of the Products or for taxes based on your net income.
For Products eligible for return for a refund which have been returned by a customer in accordance with your standard return policy, Braintree will issue a refund to the customer for the full amount of the purchase price for the returned Products (minus the non-refundable shipping charge associated with the applicable Order). You will not be liable to Aboomba for any transaction fees or Commission in connection with any returned Product.
Publicity and Privacy Release
You represent and warrant that you have obtained and secured a valid consent and release for individuals or locations featured or appearing in your User Content where necessary and appropriate for each item of User Content and Aboomba may use such User Content as contemplated in this Agreement without obtaining any additional consents or permissions or the payment of additional fees to third parties.
If you are a Merchant, these Terms and the terms and conditions in your Merchant Agreement with us are designed to supplement one another. Except as expressly set forth above in this Section titled “Additional Terms Applicable to Merchants”, if there is a direct conflict between the terms of your Merchant Agreement and these Terms, the terms of your Merchant Agreement shall control.
Aboomba respects copyright law and expects its users to do the same. It is Aboomba’s policy to terminate in appropriate circumstances access to the Services for users of the Services, including without limitation Account holders, who repeatedly infringe the rights of copyright holders. Please see Aboomba’s Copyright and IP Policy at http://aboomba.com/corp/copyrightandippolicy.html, for further information.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account (if applicable) at any time by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions. Notwithstanding the provisions in this “Termination” section, if you are a Merchant, your ability to cancel your accounts or terminate your Merchant Agreement with us is governed by and subject to the applicable termination provisions in your particular Merchant Agreement.
The Services and Content are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Aboomba and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.
Limitation of Liability
NEITHER ABOOMBA NOR ANY OTHER party involved in creating, producing, or delivering the services or content will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the ServiceS or CONTENT, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not ABOOMBA has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In no event will ABOOMBA’S total liability arising OUT of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE the ServiceS or content EXCEED THE AMOUNTS YOU HAVE PAID TO ABOOMBA FOR USE OF THE SERVICES OR content OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO ABOOMBA, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ABOOMBA AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Aboomba agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Aboomba are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Aboomba otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Aboomba otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Aboomba submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Aboomba will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Aboomba will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Aboomba changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Aboomba’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Aboomba in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Aboomba and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Aboomba and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Aboomba’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Aboomba may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Aboomba under these Terms, including those regarding modifications to these Terms, will be given: (i) by Aboomba via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Aboomba’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Aboomba. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Aboomba at firstname.lastname@example.org; phone 917-817-2092; PO Box 7468, Menlo Park, CA 94026.