Terms of Service
END-USER LICENSE AND TERMS OF SERVICE
PLEASE READ THE FOLLOWING END-USER LICENSE AGREEMENT AND TERMS OF SERVICE (“AGREEMENT” OR THE “TERMS”) CAREFULLY.
If you do not agree to be bound by this Agreement, then you may not use the Services. TurtleWise reserves the right to modify this Agreement at any time without prior notice. You agree that each visit you make to the Site or the App will be subject to the then-current Agreement, and continued use of the Services now or following modifications in this Agreement confirms that you have read, accepted, and agreed to be bound by such modifications. The term “you” or “user” shall refer to any person or entity who uses, downloads, accesses, browses the App or the Site or uses or receives any Services.
- User Content. The services connect users to share guidance, information, and advice on a variety of topics. “Content” means any information, text, graphics, or other materials shared between users or uploaded, downloaded or appearing on the Services. All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Service. Any use of or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, timeliness, validity, copyright compliance, legality, decency, quality, reliability or any other aspect of any Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Service, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate. Under no circumstances will TurtleWise be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content made available via the Services.
You are responsible for your use of the Service, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and third party partners. You understand that your Content may be republished and if you do not have the right to submit Content for such use, it may subject you to liability. TurtleWise will not be responsible or liable for any use of your Content by TurtleWise in accordance with these Terms.
We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services and to terminate users or reclaim usernames. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of TurtleWise, its users and the public.
You are solely responsible for your interactions with other Users. TurtleWise makes no representations or warranties as to the conduct of Users and shall not be in any way liable for any conduct of any User. You agree to take reasonable precautions in all interactions with other Users of the Service, particularly if Users decide to meet offline or in person. You should not provide your financial information (for example, your credit card or bank account information) to other Users.
- Medical Content. TURTLEWISE IS NOT A MEDICAL ORGANIZATION AND CONTENT POSTED BY USERS IS NOT INTENDED TO BE MEDICAL ADVICE, AND YOU SHOULD NOT RELY ON THIS GUIDANCE AND INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. NO PHYSICIAN-PATIENT RELATIONSHIP IS, OR IS INTENDED TO BE, CREATED BY CONTENT PROVIDED BY USERS. PLEASE CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION, OR BEFORE COMMENCING OR DISCONTINUING ANY COURSE OF TREATMENT. THE USE OF ANY INFORMATION OR PROGRAMS PROVIDED ON THE SERVICES IS SOLELY AT YOUR OWN RISK. CALL 911 OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES.
You are advised that health, diet, fitness and other such advice is often subject to change due to medical research and developments. No assurance can be given that the Services will reflect the most recent findings or developments with respect to the particular material. You are encouraged to consult with your health care provider with any questions or concerns you may have regarding any health condition.
TurtleWise advises users posting answers to medical questions to include disclaimer language in their Content.
- Legal Content. TURTLEWISE IS NOT A LEGAL ORGANIZATION AND CONTENT POSTED BY USERS IS NOT INTENDED TO BE LEGAL ADVICE, AND YOU SHOULD NOT RELY ON THIS GUIDANCE AND INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL LEGAL ADVICE. No attorney-client relationship is, or is intended to be, created by Content provided by Users. If you believe you have a legal claim, contact an attorney licensed in your state (or country) immediately to discuss your options. Most state bar associations have services to aid you in finding an attorney. No action should be taken, delayed, or deferred based on the Content.
TurtleWise advises users posting answers to legal questions to include disclaimer language in their Content.
- License Grant. Subject the limitations contained in this Agreement, your compliance with this Agreement and your payment of any applicable fees, TurtleWise hereby grants to you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable, non-sublicensable, personal license to access and make personal and non-commercial use of the Services (including updates and upgrades that replace or supplement the Services in any respect and which are not distributed with a separate license, and any documentation) on a mobile device or computer that you own or control, subject to the limitations set forth below. This license does not include any resale or commercial use of any Service; any collection and use of any listings, descriptions, or prices; any derivative use of any Service or its contents; any downloading, copying, or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. This Agreement does not permit you to install or use the App on a mobile device that you do not own or control and you may not distribute or make the App available over a network where it could be used by multiple devices at the same time. All rights not expressly granted to you in this Agreement are reserved and retained by TurtleWise or its suppliers, rightsholders, or partners. No part of the Site or the Services may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of TurtleWise. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of TurtleWise without express written consent. You may not use any meta tags or any other “hidden text” utilizing TurtleWise’s name or trademarks without the express written consent of TurtleWise. You may not misuse the Services. You may use the Services only as permitted by Law and this Agreement. The licenses granted by TurtleWise terminate if you do not comply with this Agreement.
- License Limitations. You agree to protect the Services, and their proprietary content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Services or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by TurtleWise. Except as specifically permitted herein or expressly authorized in writing by TurtleWise, you agree that you will not directly or indirectly: (a) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (b) use the Services in any service bureau arrangement; (c) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part thereof in any form or manner or by any means; or (d) permit any third party to engage in any of the acts described in clauses (a) through (c). You understand and agree that you are not permitted to: (i) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services; (ii) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable Law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services); (iii) use any means to discover the source code or to discover the trade secrets in the Services; or (iv) otherwise circumvent any functionality that controls access to or otherwise protects the Services. Any attempt to do any of the foregoing is a violation of the rights of TurtleWise. If you breach these restrictions, you may be subject to prosecution and damages.
As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you outside or inside the App (“Push Messages”). You acknowledge that, when you use the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the Services, including your receipt of Push Messages from TurtleWise.
- Terms of Service. You agree that: (a) you will not use the Services if you are not fully able and legally competent to agree to the terms of this Agreement; (b) you will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct; (c) you will not use the Services to advertise, solicit or transmit commercial advertisements, including “spam”; (d) you will not use the Services to cause nuisance, annoyance or inconvenience; (e) you will not impair the proper operation of the network, (f) you will not try to harm the Services in any way whatsoever; (g) you will not copy, or distribute the Services or other content without written permission from TurtleWise; (h) you will only use the Services for your own use and will not resell it to a third party; (i) you will keep secure and confidential your account password or any identification we provide you which allows access to the Services; and (j) you will only use an access point or 3G/4G data account which you are authorized to use. TurtleWise shall not be liable for any loss or damage arising from your failure to comply with the terms set forth in this Agreement or to comply with applicable Law. TurtleWise explicitly reserves the right to refuse access to the Services at any time without notice for your failure to abide by the terms as set forth in this Agreement or to comply with applicable Laws.
- Billing, Rewards and Taxes
- Billing. Any fees which TurtleWise may charge you for the Services are due immediately. When you initiate a transaction with us, TurtleWise’s third party payment processor will authorize your credit or debit card for the full amount of your purchase, or in the case of a minor, their parent or guardian’s credit or debit card with their express authority and consent. The terms of your payment will be based on your chosen payment provider and may be determined by agreements between you and the financial institution, credit card issuer or other provider. YOU MUST PROMPTLY NOTIFY TURTLEWISE IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USERNAME OR PASSWORD. We may decline an order for any reason. If your order is declined by us, you will receive a full refund. A full refund may be issued by TurtleWise for any reason. TurtleWise, at its sole discretion, may make promotional offers with different features and different rates to any customer. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. We may change the fees for the Services in our sole discretion.
- Rewards. TurtleWise maintains a reward program where users may earn reward points (“TurtleBucks”) through their use of the Services. The TurtleBucks may be redeemed through a third party fulfillment organization for various rewards or charitable donations (“TurtleSwag”). TurtleWise reserves the right to discontinue our rewards program at any time or change the terms of the rewards program, including but not limited to the actions that earn users rewards and the TurtleSwag available for redemption.
- Taxes. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with this Agreement by any authority.
- Reservation of Rights. All rights not expressly granted to you in this Agreement are reserved and retained by TurtleWise or its suppliers, rightsholders, or partners. No part of the Services may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of TurtleWise.
- Account and Password. If you use the Services, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or mobile device, and you agree to accept responsibility for all activities that occur under your account or password. TurtleWise reserves the right to refuse service, terminate accounts, and remove or edit content, in its sole discretion.
- No Third Party Beneficiary. By accessing the Services you certify that such access is for your own benefit and information, and that the Services are solely for your own personal use and not for any other Person. “Person” shall include all natural persons, corporations, legal entity, and any of their/its directors, officers, agents, servants, employees, affiliates, subsidiaries, or partners.
- Indemnification. By entering into this Agreement and using the Services, you agree that you will indemnify, defend and hold harmless TurtleWise, and its partners, owners, parent organizations, subsidiaries, and affiliates, and their respective directors, officers, stockholders, agents, servants, employees and attorneys (collectively, “Indemnified Parties”), from and against any and all claims, demands, causes of action, proceedings, losses, damages, fines, penalties, liabilities, judgments, orders, costs and expenses (including reasonable attorneys’ fees and legal costs) sustained or incurred by or asserted against the Indemnified Parties by reason of, arising from, or in any way attributable to: (a) your violation or breach of any term of this Agreement or any applicable Law or regulation; (b) your violation of any rights of any third party; (c) your use or misuse of the Services; or (d) any negligence or wrongful act or omission of or by you or anyone acting on your behalf.
- DISCLAIMER OF WARRANTIES AND LIMITATION ON LIABILITY. TurtleWise and its partners, owners, subsidiaries, and affiliates, and their respective directors, officers, agents, servants, and employees (the “TurtleWise Entities) shall not be held liable for your use of the Services or any injury alleged to have been caused by such use. TurtleWise reserves the right to deny the sale of any Services, which it determines may or shall violate applicable Laws. The exercise of this right does not alleviate, amend, eliminate, or abridge your obligation to adhere to applicable Laws, nor does it impose an affirmative responsibility on TurtleWise to verify your adherence to applicable Laws.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TURTLEWISE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. TURTLEWISE DOES NOT WARRANT THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, (D) DEFECTS IN THE SERVICES WILL BE CORRECTED OR (E) THAT THE APP WILL BE AVAILABLE FOR REINSTALLS ON THE SAME OR MULTIPLE DEVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY TURTLEWISE OR ITS AUTHORIZED AGENT OR REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL ANY TURTLEWISE ENTITY BE LIABLE (I) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THIS AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF A TURTLEWISE ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (II) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES, INCLUDING ANY LOSS OF PROPERTY OR REVENUES OR ANY CLAIM, DEMAND OR DAMAGES ARISING FROM ANY TRANSACTION THROUGH THE SERVICES INITIATED OR COMPLETED BETWEEN YOU AND TURTLEWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
If, for any reason, a court finds TurtleWise liable for damages notwithstanding the foregoing, in no event shall the TurtleWise Entities’ total liability for all damages arising out of or in connection with the Services or this Agreement exceed the amount paid by you to TurtleWise for your use or receipt of the Services during the prior 12 months. The foregoing limitations will apply even if the above stated remedy fails its essential purpose.
You agree that the above limitations of liability together with the other provisions in this Agreement that limit liability are essential terms of this Agreement and that TurtleWise would not be willing to perform the Services or grant you the rights set forth in this Agreement but for your agreement to the above limitations of liability; you are agreeing to these limitations of liability to induce TurtleWise to grant you the rights set forth in this Agreement.
- RESULTS NOT GUARANTEED. TURTLEWISE DOES NOT GUARANTEE ANY RESULTS FROM USE OF THE SERVICE AND DOES NOT ENDORSE ANY ADVICE OFFERED BY OTHER USERS THROUGH THE SERVICE. ANY STATEMENTS, GUARANTEES, OR OTHER INFORMATION THAT MAY BE PROVIDED TO YOU BY OTHER USERS OF THE SERVICE ARE SOLELY ATTRIBUTABLE TO THE USER. TURTLEWISE IS NOT LIABLE FOR ANY STATEMENTS OR GUARANTEES MADE BY OTHER USERS.
- Ownership. The Services and their content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that TurtleWise and/or its licensors own all right, title and interest in and to the Services (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. You do not acquire any rights or licenses under any of TurtleWise’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of this Agreement.
Any and all (a) suggestions for correction, change and modification to the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to TurtleWise by you (collectively “Feedback”), and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by TurtleWise or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of TurtleWise. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of TurtleWise and TurtleWise may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to TurtleWise any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At TurtleWise’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
- Modifications. We may modify this Agreement at any time. Modifications become effective immediately upon your first access to or use of the Services after the “Last Revised” date at the end of this Agreement. Your continued access or use of the Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Agreement. If you do not agree with the modifications, then please uninstall and do not access or use the Services.
- Termination. This Agreement is effective until the earlier of the date that you uninstall the App or otherwise discontinue use of the Services, you fail to comply with any term of this Agreement or TurtleWise terminates this Agreement. TurtleWise may suspend or terminate your account(s) or cease providing you with all or part of the Services at any time for any reason, with or without notice to you, including, but not limited to, if we reasonably believe: (a) you have violated this Agreement, (b) you create risk or possible legal exposure for us, or (c) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you of such cessation or termination by the email address associated with your account(s) or the next time you attempt to access your account(s) or the Services. Upon termination, you will cease all use of the Services and will destroy all copies (full or partial) of the App in your possession or control. Termination will not limit any of TurtleWise’s other rights or remedies at Law or in equity. This Section 14 along with Sections 5, 9, 10, 11, 12, 13, 16, 17, 18 and 19 shall survive termination or expiration of this Agreement for any reason.
- Export Laws. You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by TurtleWise hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval.
- Injunctive Relief. You agree that a breach of this Agreement will cause irreparable injury to TurtleWise for which monetary damages would not be an adequate remedy and TurtleWise shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at Law without a bond, other security or proof of damages.
- Dispute Resolution – ARBITRATION, NO CLASS ACTIONS. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT OR THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration Law apply to this Agreement.
If you do not want to arbitrate disputes with TurtleWise and you are an individual, you may opt out of this arbitration agreement by sending an email to email@example.com within 30 days of the earlier of the day you first access or use the App and the day you first receive any of the Services.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THE TERMS OF THIS AGREEMENT AS A COURT WOULD.
If you intend to seek arbitration you must first send written notice to TurtleWise’s Customer Service Center of your intent to arbitrate (“Notice”). The Notice to TurtleWise should be sent by any of the following means: (i) electronic mail to firstname.lastname@example.org; or (ii) sending the Notice by U.S. Postal Service certified mail to our registered agent Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The Notice must (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within 30 days after the notice is received, you or TurtleWise may commence an arbitration proceeding. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules as modified by this Agreement, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. The number of arbitrators shall be one. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of this Agreement. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse all AAA filing, administration and arbitrator fees paid by you for claims totaling less than $10,000, unless the arbitrator determines that either the substance of your claim or the relief sought is improper or not warranted, as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), in which case the payment of all such fees shall be governed by the AAA Rules. In such case, you agree to reimburse TurtleWise for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. TurtleWise will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claim or the relief sought is improper or not warranted. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence shall not apply to the paragraph below.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Further, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void. If for any reason a claim proceeds in court rather than in arbitration we EACH WAIVE ANY RIGHT TO A JURY TRIAL. We also both agree that you or we may bring suit in court for injunctive relief, including to enjoin infringement or other misuse of intellectual property rights.
- Applicable Law, Venue, and Jurisdiction. By using any Service, you agree that the Federal Arbitration Act, applicable federal Law, and the Laws of the State of Delaware, without regard to principles of conflict of Laws, will govern this Agreement and any dispute of any sort that might arise between you and TurtleWise.
- Miscellaneous. This Agreement may not be modified by you except by a writing executed by the duly-authorized representatives of TurtleWise. This Agreement will inure to the benefit of and will be binding upon each party’s successors and assigns. TurtleWise’s failure to enforce any right or provision of this Agreement shall not be deemed a waiver of such right or provision. This Agreement and the licenses granted hereunder may be assigned by TurtleWise but may not be assigned by you without the prior express written consent of TurtleWise. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in this Agreement will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein will not be considered to be part of this Agreement but are for convenience only. You and TurtleWise agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of this Agreement. Your use of the Services may also be subject to other local, state, national, or international Laws. You may contact us regarding the Services or this Agreement my mail to our registered agent Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, or by email to email@example.com. This Agreement sets forth the entire understanding of the parties with respect to the matters contained herein and there are no promises, covenants or undertakings other than those expressly set forth herein.
Last Updated: January 26, 2016