PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.

The terms and conditions stated herein (collectively, the “Terms”) constitute a legal agreement between you and FixPal, Inc., a Delaware corporation (the “Company”). In these Terms, “FixPal”, “we”, “us” or “our” means FixPal, Inc., and/or “you” or “your” means any user of the Services (defined below).

FixPal aims to provide the public at large the equivalent of interactive online yellow pages. FixPal offers an online marketplace to allow professional service providers in many different fields (e.g., plumbers, electricians, carpenters, mechanics, contractors, painters, house cleaners and handymen, among others) (each, a “Provider”) and the public at large (each, a “User”) to connect with each other (the “Services”), which Services are accessible by using our website at www.fixpal.com (the “Site”) or our mobile application (the “App”). By using our Site and App, you agree to comply with and be legally bound by the terms and conditions of these Terms of Service (“Terms”), whether or not you become a registered user of the Services. These Terms govern your access to and use of the Site, App and Services and all Content (defined under “Ownership” below), and constitute a binding legal agreement between you and Company. Please also read carefully our Privacy Policy at http://www.fixpal.com/privacy-policy . If you do not agree to these Terms, you have no right to obtain information from or otherwise continue using the Site, App or Services. Failure to use the Site or App in accordance with these Terms may subject you to civil and criminal penalties.

In order to use the Services, you must agree to the terms and conditions that are set out below. By using the Site or App, you hereby expressly acknowledge and agree to be bound by the Terms, and any future amendments and additions to these Terms as published from time to time at http://www.fixpal.com/terms-of-service.

Company reserves the right to modify the terms and conditions of these Terms or any other policy relating to the Services at any time, effective upon posting of an updated version of these Terms on the Site and App. You are responsible for regularly reviewing these Terms. Continued use of the Service after any such changes shall constitute your consent to such changes.

By accessing or using the Services or clicking “accept” or “agree” to these Terms, you acknowledge that you have read, understand and agree to be bound by these Terms. THESE TERMS CONTAIN, AMONG OTHER THINGS, AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER.

Company reserves the right, at its sole discretion, to modify the Services or to modify these Terms at any time and without prior notice. If we modify these Terms, we will post the modification on the Site and App or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site, App or Services after we have posted a modification on the Site and App or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, App and Services.

You must be 18 or over, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to register with us or use the Services. If you are between the ages of 13 and 18 or the applicable legal age in your jurisdiction, you can use the Services only in conjunction with, and under the supervision of, your parent or guardian who has agreed to these Terms. If you are under the age of 13, you may not use the Services, in compliance with the Children’s Online Privacy Protection Act. If you are the parent or legal guardian of a child under the age of 18, you may use the Services on behalf of such minor child. By using the Services on behalf of a minor child, you represent and warrant that you are the parent or legal guardian of such child. If you do not qualify under these terms, do not use the Services. Membership in the Services is void where prohibited by law, and the right to access the Services is revoked in such jurisdictions. By using the Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms and to abide by all of the terms and conditions set forth herein. The Services are administered in the United States and intended for United States users only; any use outside of the United States is at the Users’ own risk and Users are responsible for compliance with any local laws applicable to their use of the Services.

We will use certain defined terms in this section and throughout these Terms as follows:

Users and Providers may have the opportunity to submit User Content and Provider Content, as applicable, including feedback regarding Users’ experiences with Providers who are listed on the Site and App, and updates to your Account that appears on the Site and App. You may submit User Content or Provider Content, as applicable, by emailing us at [email protected] or through the “Contact” section of the Site and App.

You acknowledge and agree that all User Content and Provider Content, as applicable, will be the sole and exclusive property of Company and you hereby irrevocably assign to Company and agree to irrevocably assign to Company all of your right, title, and interest in and to all User Content and Provider Content, as applicable, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Company’s request and expense, you will execute documents and take such further acts as Company may reasonably request to assist Company to acquire, perfect, and maintain its intellectual property rights and other legal protections in such User Content and/or Provider Content, as applicable.

If you are a User posting User Content to your User Account, you are also subject to the following additional terms:

If you are a Provider posting Provider Content to your Provider Account, you are also subject to the following additional terms:

As stated above, Company makes available an online platform or marketplace for Providers and Users to meet online and arrange for Users to obtain various types of services from Providers listed on our Site or App. Company does not provide any services. Company’s responsibility is limited to facilitating the availability of the App and Services.

To actively use the Site, App and Services, you must register as a User or Provider, as applicable, and authorize the use and disclosure of your User Content or Provider Content for purposes of allowing us to provide the Services.

Users are able to connect with a Provider in one of two ways: (i) an User may connect directly with a Provider by searching a list of Providers and then selecting a Provider by clicking to “order” his/her services; or (ii) by “posting” a job to the Site or App. The first option allows Users to search for Providers who are listed on our Site and App. Users are able to tailor such list by applying various filters and parameters, including a Provider’s geographic proximity, current availability, rating level and listed rates and/or fixed fees. User would then be able to review such list and hire a Provider directly through the Site or App. The second option allows Users to post “jobs” directly to the Site or App while applying certain filters (e.g., required deadline for performance of such job, and Provider’s proximity, rate and rating level), and any available Provider who meets such specifications would then be able to directly accept the job or request additional information prior to accepting the job.

Users and Providers are able to contact each other via message, phone call or video call.

Providers are allowed to disclose their hourly rate or fixed fee directly on their account profile. Users and Providers may also directly negotiate pricing terms.

Ratings will be based on a 5-star quality rating system. Upon completion of a job, Users are able to rate Providers based on this rating system, and such ratings will be visible by any future User of the Site or App. Providers are also able to rate Users based on this rating system, but such ratings are only visible to the Company, Providers using our Site or App, and the User who is being rated (this rating will not be visible to other Users).

The Company collects the location coordinates of the Site and App for the purpose of connecting Users and Providers. If you chose not to share your location coordinates with the Company, the Company will not be able to provide to you certain features of the Site or App.

Provider Content found on the Site and App is intended for general reference purposes only. Such Provider Content is self-reported by the Provider. Your relationship relating to our Site or App is strictly with the Provider. We are not involved in any way with the actual substance of that relationship or any part of the services provided by any Provider and we do not validate, and are not involved in, any of the services provided by Providers listed on our Site or App. The Company does not verify any Provider Content, and consequently we do not guarantee the verification of qualifications, certification, credentials, competence or background of any Provider. We have no control over and cannot guarantee the availability of any Provider at any particular time, or guarantee a particular Provider’s office hours or pricing information. We will not be liable for cancelled or otherwise unfulfilled appointments or any injury resulting therefrom, or for any other injury resulting from the use of the Services whatsoever.

In furtherance of (and not in any limitation of) the above, you hereby acknowledge and agree that notwithstanding the assistance that the Services provided to you in locating Providers, the ultimate decision to engage the services of a Provider remains yours and yours alone, and you hereby agree to assume any risk inherent in utilizing the Services and/or deciding to actually engage and use the services of any Provider listed in our Site or App.

In order to register, Users and Providers must provide certain information about themselves to create an account on the Site or App (“Account”). Users may voluntarily submit, and hereby authorize Company, its employees, agents and others operating on its behalf, to use and/or disclose information about such User. Our Privacy Policy explains the information practices that apply to personal information we have about Users, as well as any choices a User can make about the ways this information is used. Please review it carefully.

If you are a Provider, you may login to our Site or App by creating an account directly in our Site or App (“Provider Account”). You will be required to submit your company name, business address and other descriptive information about your business, email address, mobile number, and personal image or company logo, all of which is required in order to create your Provider Account. Provider Accounts will be made publicly available via the Site and App. Users will be able to engage the services of a Provider via the Site and App based upon the information provided in your Provider Account.

A Provider’s profile will disclose his/her current availability, rates and other pricing information, geographic location, company address, and any promotions or discounts offered by such Provider. A Provider is able to view notifications, search for jobs in his/her area of expertise, accept or reject offers by Users to hire such Provider, contact Users directly via message, phone or video, and rate Users upon completion of the services.

As part of the Services, we reserve the right to publish any Provider Content in a Provider Account, including information about such Provider’s services and any reviews submitted by any User regarding the use of such Provider’s services, and to remove such Provider Content for any reason. We are not, however, responsible for any failure or delay in removing Provider Content.

If you are a User, you may login to our Site or App by creating an account directly on our Site or App (“User Account”). To create your User Account, you will be required to submit your mobile number and zip code. Any other information you disclose will be options, including your address.

An User will also be able to view notifications, search for Providers who meet certain specifications (e.g., skills, geographic proximity, rates and other pricing information, and rating level), directly send a hiring notification to any Provider, and contact Providers directly via message, phone or video.

We will create your Provider Account or User Account, as applicable, for your use of the Site or App based upon the information you provide to us. You may not have more than one (1) active Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. You are responsible for safeguarding your password. A Provider or User, as applicable, agrees to not disclose his or her password to any third party and that he or she will take sole responsibility for any activities or actions under his or her Account, whether or not such Provider or User, as applicable, has authorized such activities or actions. A Provider or User, as applicable, will immediately notify us of any unauthorized use of his or her Account.

Company reserves the right, at any time and without prior notice, to remove or disable access to any User Account or Provider Account for any reason, in its sole discretion, that we consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, App or Services.

We do not collect any payments from Users. Users will pay for services directly to Providers either through the Providers’ linked Stripe account or using another method of payment accepted by Service Providers. The price for engaging the services of a Provider will be as quoted on the Provider profile, either in the form of an hourly rate or fixed fee, or as negotiated directly between User and Provider through the Site or App.

We charge Providers a transaction fee per booked order, and Providers agree to pay such fee. Any time a Provider accepts a job that was booked through the Site or App, the Company charges him/her a transaction fee, which fee may be modified at any time at the sole discretion of the Company. A Provider will not be charged this fee in the case an User cancels the job prior to the requested date/time. Company will charge Provider’s credit card at the earlier of (i) on a monthly basis, or (ii) at such time as the fees owed to the Company reach a certain amount to be determined at the sole discretion of the Company. A Provider Account may be suspended at Company’s sole discretion for failure by Provider to pay Company this transaction fee.

The features, information and materials provided and depicted through the Site, App or Services are protected by copyright, trademark and other intellectual property laws, and are the sole property of Company, except for any legal names and trademarks of Providers listed in our Site or App, which belong to such Providers. All Company Content is provided to Users by Company solely to support User’s permitted use of the Services. The Company Content may be modified from time to time by Company in its sole discretion and without notice. Except as expressly set forth herein, no license right or interest is granted to Users or Providers for any other purpose, and any other use of the Services or the Company Content by Users or Providers shall constitute a material breach of these Terms. Company retains all rights in the Services and Company Content and any associated trademarks, copyrights, trade secrets or other intellectual property rights.

By making User Content or Provider Content, as applicable, available on or through Services, you hereby grant to Company a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify (for formatting purposes only), distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, access and otherwise exploit such User Content or Provider Content, as applicable, on, through or by means of the Services, including for commercial, advertising and promotional purposes relating to the Services.

Subject to your compliance with these Terms, Company grants you a limited, non-exclusive, non-transferable license to (i) access and view any Company Content solely for your personal and non-commercial purposes when you are using the Services; (ii) access and view any User Content or Provider Content, as applicable, that belongs to other Users or Providers to which you are permitted access, solely for your personal and non-commercial purposes when you are using the Services; and (iii) access and use the Services via an industry standard consumer web browser (such as MS Internet Explorer, Firefox, Safari, etc.) or mobile phone solely for the purpose of obtaining or providing the Services as permitted herein. You have no right to sublicense the license rights granted in this section.

You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit any (i) Company Content or any portion thereof, or (ii) any User Content or Provider Content, as applicable, that belongs to other Users or Providers, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Company or its licensors, except for the licenses and rights expressly granted in these Terms.

The Services are offered solely for User’s personal use for the purposes described in these Terms. Any and all other uses are prohibited. You agree not to (and not to allow any third party to):

Company has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Company may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Company or to comply with legal process (for example, subpoenas or warrants), (ii) enforce or administer our agreements with Users, such as these Terms, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of Company , its users, or members of the public. You acknowledge that Company has no obligation to monitor your access to or use of the Site, App or Services or to review any Company Content, User Content or Provider Content, but has the right to do so for the purpose of operating and improving the Site, App and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms.

Company is committed to helping you safeguard your privacy online. Each User must review our privacy policy for details about how we collect and use information about the use of Company’s Services. Company’s privacy policy is expressly incorporated herein by this reference.

The Site, App and Services may contain links to third-party websites or resources. You acknowledge and agree that Company is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Company of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, App and Services (“Feedback”). You may submit Feedback by emailing us at [email protected] or through the “Contact” section of the Site or App. You acknowledge and agree that all Feedback will be the sole and exclusive property of Company and you hereby irrevocably assign to Company and agree to irrevocably assign to Company all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein. At Company’s request and expense, you will execute documents and take such further acts as Company may reasonably request to assist Company to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

Use of the Services requires internet access through your computer, tablet or mobile device. You are responsible for all mobile carrier charges resulting from your use of the Services. Company does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers. The user interface and functionality may not be the same across all platforms and devices.

Company’s Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Company is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Company may suspend your ability to use all or any element of the Services or may terminate these Terms effective immediately, without any notice or explanation. Without limiting the foregoing, Company may suspend your access to the Services if we believe you to be in violation of any part of these Terms, or if your rating falls below three (3) stars. After any suspension or termination, you may or may not be granted permission to re-establish a Provider Account or User Account, as applicable. You agree that Company shall not be liable to you for any termination of these Terms or for any effects of any termination of these Terms. You may cancel your Provider Account or User Account, as applicable, at any time by sending an email to [email protected] Please note that if your Provider Account or User Account, as applicable, is cancelled, we do not have an obligation to delete or return to you any User Content or Provider Content you have submitted through the Site or App.

Company may send you email messages to provide you information regarding our Services. You may report a problem to us regarding any Provider listed on our Site or App, but we cannot guarantee that we will contact the Provider to remedy such problem.

YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR ACCOUNT. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID THE COMPANY TO UTILIZE THE SERVICES OR (B) $100. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (A) THESE TERMS, (B) ANY USE OF THE SITE, APP OR SERVICES, (C) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE SERVICES), OR (D) YOUR USE OF ANY SERVICES PROVIDED BY A PROVIDER OR THE PERFORMANCE, NON-PERFORMANCE OR CONDUCT OF ANY PROVIDER IN CONNECTION WITH THE SERVICES. IN ADDITION, YOU SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING YOU TO THE SITE, APP BY REFERRAL, LINK OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES OR THE CONTENT. COMPANY IS NEITHER AN AGENT OF NOR OTHERWISE ASSOCIATED WITH ANY PROVIDER LISTED IN THE SITE OR APP.

You and Company understand and agree that the disclaimers, exclusions and limitations in this Section titled “Liability Limitations” and in the Section below titled “Disclaimer of Warranties” are essential elements of these Terms and that they represent a reasonable allocation of risk. In particular, you understand that Company would be unable to make the Services available to you except on these terms and hereby agree that these Terms will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

THE SERVICES, ALL CONTENT, AND ANY OTHER INFORMATION, AND MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES, ARE PROVIDED TO USER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. COMPANY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS OR INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, PERFORMANCE OR TRADE USAGE. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF COMPANY CONTENT, USER CONTENT OR PROVIDER CONTENT OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES. COMPANY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS OR ANY COMMUNICATION, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF COMPANY. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE, OR THAT THE SERVICES OR SOFTWARE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS, OR THAT IT WILL PRESERVE OR MAINTAIN ANY SUCH COMPANY CONTENT, USER CONTENT AND/OR PROVIDER CONENT WITHOUT LOSS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE SERVICES OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SITE, APP OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

You agree to release, defend, indemnify, and hold Company and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with (a) your access to or use of the Site, App or Services, or your violation of these Terms; (b) your User Content or Provider Content, as applicable; and (c) your engagement and use of any services provided by a Provider, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of your engagement and use of any services provided by a Provider.

Your affirmative act of using and/or registering for the Services constitutes your electronic signature to these Terms and your consent to enter into agreements with us electronically.

These Terms constitute the entire and exclusive understanding and agreement between Company and you regarding the Site, App and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Company and you regarding the Site, App and Services.

You may not assign or transfer these Terms, by operation of law or otherwise, without Company’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Company may assign or transfer these Terms, at its sole discretion, 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 permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Company (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or App. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

These Terms will be interpreted in accordance with the laws of the State of New York, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in New York County, New York or a United States District Court located in New York County, New York for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction, as set forth in the Dispute Resolution provision below.

Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Company or their successors or assigns shall exclusively be settled through binding and confidential arbitration.

Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by these Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).

You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

You and Company must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR COMPANY MUST BE BROUGHT IN THE PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Company will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) Company also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator shall honor claims of privilege and privacy recognized at law; (f) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.

Notwithstanding the foregoing, either you or Company may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York County, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York County, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York County, New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.

With the exception of subparts (a) and (b) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Company shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York County, New York.

For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at https://www.adr.org.

To the extent allowed by applicable law, you agree that you will bring any claim or cause of action arising from or relating to your access or use of the Services within one (1) year from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and these Terms shall continue in effect. The failure of Company to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Company. 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, please contact us at [email protected]