Thank you for using Indy, a product and service of Tispr, Inc., (collectively, the “Company”, “Indy”, “we”, “us”, “our” and the like), the Indy website at https://weareindy.com (the “Site”) and/or downloading the Indy mobile application (the “App”) a software-as-a-service suite for small businesses and freelancers (such software together with the Site and App, collectively, the “Service”). These Terms of Service (this “Agreement”) is made by and between Indy and the individual accepting this Agreement or the entity which such individual represents, as applicable (“you”, “your” and the like) and governs your use of the Service. If the individual accepting this Agreement is doing so on behalf of an entity, such individual represents, warrants and covenants that he/she has all necessary authority to do so. These Terms of Service governs your browsing, viewing and other use of the Service, including transactions you agree to enter into with other users.
Please read this Agreement carefully, as it (among other things) provides: (a) in Section 17 that you and the Company will arbitrate certain claims instead of going to court and that you will not bring class action claims against the Company; (b) in Section 7 that certain terms and conditions apply with respect to recurring subscription charges for certain paid account types. Please only create a Service account or otherwise use the Service if you agree to be legally bound by all terms and conditions herein. If you are viewing this on your mobile device, you can also view this Agreement via a web browser at https://weareindy.com/terms/. Your acceptance of this Agreement creates a legally binding contract between you and the Company. If you do not agree with any aspect of this Agreement, then do not create a Service account or otherwise use the Service.
NOTE TO USERS under 18 years of age: The Service IS not FOR persons under the age of 18. By using the Service, you represent and warrant that you are at least 18 years of age.
- Guidelines. When using the Service, you will be subject to any additional guidelines or rules applicable to specific services, offers and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into this Agreement.
- Your Business. You represent and warrant that you will use the Service only in furtherance of your own business activities, and that all such activities will comply with all applicable laws, rules and regulations. Without limiting the generality of the foregoing, you represent and warrant that you will not use the Service in connection with any of the following: (i) illegal or fraudulent goods or services, including without limitation to counterfeit goods, stolen goods, illegal or controlled substances, and substances that pose a risk to consumer safety; (ii) illegal gambling / wagering, escort services or pyramid schemes; (iii) any sale of firearms and weapons of any kind; (iv) money laundering; (v) debt collection services; or (vi) any activity that we deem, in our sole discretion, may be associated with a high level of risk, may create liability for us or may cause us to lose the services of any of our third party service providers, licensors, vendors or partners.
- Generally Applicable Rights and Obligations. The terms and conditions of this Section 4 apply to all of the Service.
- General. During the term of this Agreement and subject to all terms and conditions hereof (and your compliance therewith), you may access and use the Service. You agree to comply with all applicable laws, rules and regulations with respect to your use of the Service, including without limitation laws, rules and regulations about intellectual property rights, the Internet, technology, data, email, and privacy. Without limiting the generality of the foregoing, you may not export, re-export, import or transfer any Service into or out of any United States embargoed countries or to anyone listed as a specifically prohibited recipient by the United States government. You represent and warrant that: (i) you are not located in any countries that are subject to U.S. export restrictions; (ii) you will not use the Service for prohibited end uses (such as for the design, development or production of nuclear, chemical or biological weapons); and (iii) you are not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government (such as by being listed on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List).
- Prohibited Uses. You may not use the Service in any manner that in our sole discretion could damage, disable, overburden or impair or interfere with any other party’s use of the Service. You may not interfere with or damage the operation of the Service or any other user’s enjoyment of it by any means, including without limitation by uploading or otherwise disseminating viruses, worms or other malicious code. You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any content accessible through the Service, or features that enforce limitations on the use of the Service. You may not attempt to gain unauthorized access to the Service, or any part of them, other accounts, computer systems or networks connected to the Service, or any part of them, through hacking, password mining or any other means, or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service. You agree not to scrape or otherwise use automated means to access or gather information from the Service, and agree not to bypass any robot exclusion measures we may put into place. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You agree neither to modify the Service in any manner or form, nor to use modified versions of the Service, including without limitation for the purpose of obtaining unauthorized access to the Service. Access to or use of the Service from territories where such access or use is illegal is strictly prohibited.
- Changes to the Service. Indy reserves the right to modify or discontinue any aspect of the Service at any time, with or without notice.
- Account Information. You agree that the information you provide to Indy upon purchase or member registration and at all other times will be true, accurate, current and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times.
- Your Content.
- The Service allows you to submit, upload, store, share and transmit a variety of digital content and materials, which may include contacts, invoices and other content, text (including email and chat messages), images, video and audio (all such content and materials, “Your Content”). You shall be solely responsible for Your Content and the consequences of creating, generating, modifying, submitting, uploading, storing or transmitting Your Content. In connection with Your Content, you affirm, represent and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Indy to use, all patent, trademark, copyright or other proprietary rights in and to any and all of Your Content to enable use of Your Content in the manner contemplated by Indy and this Agreement, and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in Your Content to use the name or likeness of each and every such identifiable individual person, to enable inclusion thereof in Your Content, and to use Your Content in the manner contemplated by and this Agreement.
- You are solely responsible for obtaining any and all licenses from third parties and paying any royalties or fees necessary in connection with the use of Your Content in connection with the Service, and agree to indemnify and hold Indy and its affiliates, and each of their officers, directors, employees and agents harmless from and against any claim, action, suit, proceeding, damages, liability, loss, cost or expense (including reasonable attorney’s fees) arising out of or incurred in connection with any actual or alleged failure to obtain any such licenses or pay any such royalties or fees.
- As between you and Indy, you are the owner of Your Content. You hereby grant Indy a worldwide, non-exclusive, fully paid-up, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, perform, and otherwise exploit Your Content in connection with the provision, operation, support, marketing and promotion of the Service, including without limitation for redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. The foregoing license shall terminate with respect to any item of Your Content that you permanently delete on the Service, other than to the extent the Service would retain archival or backup copies in the ordinary course of Indy’s business and other than to the extent Your Content has been shared with other Service users.
- Indy cannot guarantee the security of Your Content. Indy expressly disclaims any representation or warranty, whether expressed or implied, with respect to ensuring, guaranteeing or otherwise offering any definitive promise of security in connection with Your Content.
- You are solely responsible for maintaining backups of Your Content. You agree that Indy shall have no liability for any loss of Your Content in connection with the Service.
- In connection with Your Content and any other transmission of messages or material facilitated by the Service, you further agree that you will not: (i) submit or transmit material that is not authorized by the copyright owner, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post and sell the material and to grant Indy all of the license rights granted herein; (ii) publish or transmit falsehoods or misrepresentations that could damage Indy or any third party; (iii) submit or transmit material that is unlawful, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; or (iv) replicate products or services offered by Indy for the purpose of republicating, reselling or brokering any Indy content or creating a separate business management services substantially similar to the Service. If notified by a third party of Your Content that allegedly does not conform to this Agreement, Indy may investigate the allegation and determine in good faith and in its sole discretion whether to remove Your Content, which it reserves the right to do at any time. Additionally, Indy may, at any time, remove any of Your Content, that in the sole judgment of Indy, violates this Agreement. If you are a copyright holder and believe in good faith that Your Content has been made available through the Service without your authorization, you may follow the process outlined at http://weareindy.com/copyright/ to notify Indy’s designated agent (pursuant to 17 U.S.C. § 512(c)) and request that Indy remove such content.
- Indy reserves the right to report any of Your Content that it believes may be unlawful to appropriate authorities. You agree that Indyr shall have no liability of any kind to you with respect to any such reporting that Indy undertakes in good faith.
- Indy reserves the right to use whatever means it deems appropriate to monitor your compliance with the terms of this Agreement.
- Messaging Services. The terms and conditions of this Section 5 apply to your access to and use of email, chat and messaging services available as part of the Service (the “Messaging Services”).
- Blocked Messages. Messages may be blocked, delayed or prevented from being delivered by destination email servers and other reasons outside of our control. In addition, messages may be blocked, delayed or prevented from being received due to your configuration of the Messaging Services and other reasons outside of our control. You agree that we shall have no liability in connection with any such blocking, delay or prevention of delivery or receipt, and that your payment obligations hereunder continue regardless of whether delivery or receipt of messages is prevented, delayed or blocked.
- Compliance. You are solely responsible for ensuring any emails you send and receive using the Messaging Services comply with the Federal CAN-SPAM Act and any other laws, rules and regulations applicable to email. Neither Indy nor the Messaging Services are the “sender” as defined in the Federal CAN-SPAM Act.
- Storing and Scanning. When you send, attempt to send or receive a message, we (or our third-party providers) may store and scan your message and Your Content included in the message. This helps us protect you and the Service by preventing and blocking “spam” emails and messages, viruses and spyware, and other harmful or unwanted items from being sent and received over the Messaging Services. You hereby consent to all such storing and scanning.
- Suspension and Termination. Without limitation of any other provision of this Agreement, we may suspend or terminate your access to and use of the Messaging Services in the event we determine (in our sole discretion) that you may be using the Messaging Services for distribution of unsolicited and unauthorized commercial messages, in connection with any fraudulent or illegal activities or activities in violation of this Agreement, for purposes of harassing, intimidating or threatening others or in connection with the infringement or misappropriation of any third party rights.
- Chat Application. Indy does not control the content transmitted by other users of the chat application and does not have any obligation to monitor such content for any purpose. Without limitation of any other provision of this Agreement, you acknowledge that you are solely responsible for all of Your Content that you transmit through the chat application. If at any time, Indy chooses, in its sole discretion, to monitor Your Content or the content of any other users transmitted in connection with the chat application, Indy nonetheless assumes no responsibility for the content, no obligation to modify or remove any inappropriate content, and no responsibility for the conduct of you or another user transmitting any such content. In the course of using the chat application, you may encounter content that you may find to be offensive, indecent or objectionable. You agree that you use the chat application at your sole risk and we shall not have any liability to you for content that may be found to be offensive, indecent or objectionable.
- Third Party Applications. The terms and conditions of this Section 6 apply to your access to and use of third party services made available for your use in conjunction with the Service (the “Third Party Applications”). As of the last revision date of this Agreement, Third Party Applications include Google Maps, Stripe Connect, Paypal and Plaid.
- Removal. The availability and ability to use a given Third Party Application is subject to change from time to time, with or without notice.
- Responsibility. The Third Party Applications are made available as a convenience to you and are provided on a fully AS-IS basis. Your access and use of Third Party Applications are governed solely by the terms and conditions of such Third Party Applications, and you agree to comply with such terms and conditions. You acknowledge and agree that Indy is not the developer of, makes no warranties regarding, and shall have no obligation or liability of any kind with respect to, the Thirty Party Applications (including without limitation with respect to the use, inability to use, performance or non-performance thereof). You hereby assume all risks and liability of using the Third Party Applications. You may be required to register for or log into such Third Party Applications. By enabling any Third Party Applications, you are expressly permitting us to disclose your login information, as well as your data as necessary to facilitate the use or enablement of such Third Party Applications.
- Third Party Applications for Transaction Processing. The Service provides several accepted payment methods for transaction processing services for your business. These payment methods may require the use of the Third Party Applications. You may be required to register for or log into such Third Party Applications on their respective websites and to provide your and/or your customer’s payment information necessary to facilitate and complete a transaction between your customer or Indy and you. By enabling any Third Party Applications, you are expressly permitting us to disclose information regarding you and your business to the operators of such Third Party Applications as necessary to facilitate your use of transaction processing services. You agree to provide all information requested by Indy and/or the applicable Third Party Application operator in connection with enabling payment processing, verifying your identity, satisfying IRS reporting obligations and complying with any other legal or compliance requirements, including but not limited to your bank account and routing numbers and Tax ID or Social Security Number. You shall promptly notify Indy and/or the applicable Third Party Application operator of any change or update to any information previously provided to Indy and/or the applicable Third Party Application operator (as applicable). Your bank and payment account information is stored only with the Third Party Applications you use for transaction processing. Indy does not store your payment information on its systems, unless you include your payment information in Your Content, and shall not have any responsibility for the safety or security of that information. The following are some of the Third Party Applications the Service is integrated with for Transaction Processing:
- Paypal. Indy uses services provided by Paypal. By using Paypal for payment processing services, you hereby expressly consent that Indy may transmit, use, store and transmit to PayPal Your Content as is reasonably necessary in order to provide you with use of PayPal’s services in conjunction with the Service. You may withdraw such consent at any time by disabling use of PayPal services through the Service user interface. If you accept PayPal payments in connection with invoices generated or sent through the Service for amounts due to you from your customers, you agree to publish and abide by a refund policy with respect to such payments that complies with all applicable laws, rules and regulations.
- Payments. By signing up for any paid Service account or any paid add-on features and providing your payment information, you agree to pay us (and authorize our Payment Processor to charge you) the recurring and/or nonrecurring fees as displayed to you at the time you create your account and as may be modified from time to time as described in this Agreement, as well as any other fees you expressly choose to incur in connection with your use of the Service. Unless otherwise specified upon enrollment, for subscription products or services, your payment method will be authorized for up to a month for the applicable Service account type and on a monthly basis thereafter until you cancel the subscription. You acknowledge and agree that the payment method provided by you will be automatically charged the fees you incur in connection with your use of the Service, and represent and warrant that you have all necessary rights relating to such payment instrument to authorize us to make such charges. Your use of the Service may be suspended if we are unable to charge such payment instrument for any reason or if your account is otherwise past due. The fees applicable to your account may be subject to modification from time to time pursuant to notice (which may be given via email) provided by us at least thirty (30) days in advance of the payment date for which the modification would be effective. You may at any time cancel your account as set forth below if you do not agree to any modified fees. All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by us from time to time, as indicated at the time of payment) and are non-refundable.
- Cancellation. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CONTACTING US AT email@example.com OR BY DOWNGRADING YOUR ACCOUNT IN THE SETTINGS SECTION ON THE WEBSITE. IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY STILL USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION MONTH. TO NOT BE CHARGED FOR YOUR SUBSCRIPTION FOR THE FOLLOWING SUBSCRIPTION MONTH, YOU MUST CANCEL YOUR SUBSCRIPTION PRIOR TO THE FIRST DAY OF THAT SUBSCRIPTION MONTH, OR YOU WILL OTHERWISE BE CHARGED FOR THAT SUBSCRIPTION MONTH.
For purposes of clarity, a “Subscription Month” consists of each successive one-month period beginning with the day and month your subscription to the Service begins. By way of example, if the start date of your subscription to the Service is February 16, 2020, then your first Subscription Month begins on February 16, 2020 and ends on March 16, 2020, and your second Subscription Month begins on March 16, 2020 and ends on April 16, 2020.
- Taxes. All fees payable by you are exclusive of applicable taxes and duties. If you are legally entitled to an exemption from any sales, use or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
- Modification. Indy may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after Indy provides notice of the Changes, whether such notice is provided through the Service user interface or is sent to the email address associated with your account or otherwise; or (ii) when you continue to use the Service following the posting of the Changes, whichever comes first.
- Proprietary Rights.
- Ownership. As between the parties, the Service and all related intellectual property rights are owned by Indy. The content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services and all other elements of the Service that are provided by Indy (“Indy Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights and applicable laws. Except as expressly authorized by Indy, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of Indy Materials. You agree not to reverse engineer, decompile, disassemble, otherwise attempt to discover the source code, algorithm or programs underlying the Indy Materials, or encourage or enable any other individual or entity to do any of the foregoing.
- Patent Claims. You may not use the Service for purposes of bringing a patent infringement claim against Indy or for the purpose of creating a product or service competitive with any aspect of the Service.
- Feedback. You are not required to provide any feedback, ideas or suggestions to Indy regarding the Service or any other products, services or technology of Indy (collectively, “Feedback”). To the extent you do provide any Feedback to Indy, you agree that Indy shall have and hereby grant to Indy the right and license to use, reproduce, modify, distribute, make, sell and otherwise exploit in any way, shape or form such Feedback on a perpetual, irrevocable and worldwide basis without payment or attribution of any kind to you.
- User Communications. Under this Agreement, you consent to receive communications from Indy electronically. We will communicate with you by email or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. If you do not provide us with an email address for our communications, we may refuse to offer you the Service.
- We may provide any notice to you under this Agreement by sending a message to the email address then associated with your account. Notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. We may also give you legal notice by mail to the mailing address we have on file for you, if any. In such case, notice shall be deemed given five days after the date of mailing or (if mail is sent by overnight, express mail) the first business day after the date of mailing.
- To give us notice under this Agreement, you must provide such notice by personal delivery, overnight courier or registered or certified mail to 1635 16th Street, Santa Monica, CA 90404. We may update the address for notices to us by listing a new address for our company headquarters on the Indy website at https://www.weareindy.com. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective five business days after they are sent.
- Disagreements. You alone are responsible for your involvement with any third parties with whom you may interact in connection with the Service. Indy reserves the right, but has no obligation, to monitor disagreements between you and such parties.
- You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Service account by contacting us at firstname.lastname@example.org or by using any account deletion functionality we may provide through the Service user interface. Note that deleting the App from your device will not terminate your Indy account. You agree that Indy, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Service, at any time and without notice. The Company may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that the Company shall not be liable to you or any third-party for any such termination.
- Upon your termination, Indy will keep certain materials from Your Content for ninety (90) days, after which all data related to your Indy Account, including Your Content, or any part thereof, will be deleted, preventing you from accessing or using any of the Service. Prior to the deletion, you will have an opportunity to export certain materials from Your Content.
- Disclaimers; No Warranties. THE SERVICE AND ANY MEDIA, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, INDY AND ITS AFFILIATED COMPANIES, AND ITS AND THEIR SUPPLIERS, SERVICE PROVIDERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
INDY AND ITS AFFILIATED COMPANIES, AND ITS AND THEIR SUPPLIERS, SERVICE PROVIDERS, LICENSORS AND PARTNERS, DO NOT WARRANT THAT THE FEATURES CONTAINED IN THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
INDY AND ITS AFFILIATED COMPANIES, AND ITS AND THEIR SUPPLIERS, SERVICE PROVIDERS, LICENSORS AND PARTNERS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. YOU (AND NOT INDY OR ITS AFFILIATED COMPANIES NOR ITS OR THEIR SUPPLIERS, SERVICE PROVIDERS, LICENSORS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD, OR OTHERWISE OBTAIN MEDIA, MATERIAL OR OTHER DATA THROUGH THE USE OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL OR DATA.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Indemnification; Hold Harmless. You agree to indemnify and hold Indy and its affiliated companies, and its and their officers, directors, employees, agents, suppliers, service providers, licensors and partners, harmless from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of your use or misuse of the Service, violation of the rights of any other person or entity, or any breach of this Agreement. Indy reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
- Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL INDY AND ITS AFFILIATED COMPANIES, AND ITS AND THEIR SUPPLIERS, SERVICE PROVIDERS, LICENSORS AND PARTNERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE SERVICE OR ANY INDY MATERIALS, OR ANY OTHER INTERACTIONS WITH INDY OR ITS AFFILIATED COMPANIES, AND ITS AND THEIR SUPPLIERS, SERVICE PROVIDERS, LICENSORS AND PARTNERS, EVEN IF INDY OR A INDY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY TO YOU OF INDY AND ITS AFFILIATED COMPANIES, AND ITS AND THEIR SUPPLIERS, SERVICE PROVIDERS, LICENSORS AND PARTNERS, FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE OR OTHER INDY MATERIALS (WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE) EXCEED THE GREATER OF TWENTY DOLLARS AND THE FEES YOU HAVE ACTUALLY PAID TO INDY HEREUNDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, INDY’S LIABILITY WILL BE LIMITED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Class Action Waiver. YOU AND INDY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
- Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures (the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability and damages provisions in Section 16. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim.
- Venue; Costs. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Indy may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise. Payment of all filing, administration and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney’s fees.
- Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 17.2 is invalid or unenforceable, you and Indy agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 17.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
- Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
- Claims. YOU AND INDY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
- Jurisdiction. You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to mandatory arbitration as set forth above in Section 17 shall be filed only in the state or federal courts in and for Santa Clara County, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
- Waiver. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
- Severability. If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not (except as set forth in Section 17.5) affect the validity and enforceability of any remaining provisions.
- Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Indy without restriction.
- Survival. Sections 1, 2, 4, 7 (with respect to accrued but unpaid amounts) and 9 through 19 will survive any termination of this Agreement.
- Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.
- Entire Agreement. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by Indy as set forth in Section 8 above.
- Disclosures. The services hereunder are offered by Tispr Inc., located at 1635 16th Street, Santa Monica, CA 90404, email@example.com, telephone: +1 424-240-5755. If you are a California resident, please be advised that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.