These Terms provide that all disputes between you and Endless will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 19 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Endless.
1. Endless Website Overview. The Website contains information regarding the products and services offered by Endless and may allow users to purchase certain Endless products. Any products purchased through this Website may be subject to additional terms that are imposed at the moment of purchase or when using the products.
2. Eligibility. By agreeing to these Terms, you represent and warrant to us that you are legally able to contract with us, and if you are under age, that a legal guardian, tutor or parent has agreed to the terms; (b) that you have not previously been suspended or removed from the Website; and (c) that your use of the Website is in compliance with any and all applicable laws and regulations. If you are using the Website on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind that entity, organization, or company to these Terms and you agree to be bound by these Terms on behalf of that entity, organization, or company.
3. Payment. Before you purchase any products from the Website, you will have an opportunity to review and accept the fees that you will be charged. Endless will charge the payment method you specify at the time of purchase. You authorize Endless to charge all sums as described in these Terms, for the product you select, to that payment method. If you pay any fees with a credit card, Endless may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4. Prohibited Conduct. BY USING THE WEBSITE YOU AGREE NOT TO:
4.1 use the Website for any illegal purpose or in violation of any local, state, national, or international law;
4.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
4.3 interfere with security-related features of the Website, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Website except to the extent that the activity is expressly permitted by applicable law;
4.4 interfere with the operation of the Website or any user’s enjoyment of the Website, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Website; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Website, or violating any regulation, policy, or procedure of any such network, equipment, or server;
4.5 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Website account without permission, or falsifying your age or date of birth;
4.6 sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 9) or any right or ability to view, access, or use any Material; or
4.7 attempt to do any of the acts described in this Section 4, or assist or permit any person in engaging in any of the acts described in this Section 4.
5. Third-Party Websites and Linked Websites. The Website may contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
6. Termination of Use; Discontinuation and Modification of the Website. If you violate any provision of these Terms, your permission from us to use the Website will terminate automatically. In addition, Endless may in its sole discretion terminate your access to the Website at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Website at any time (including by limiting or discontinuing certain features of the Website), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Website or any suspension or termination of your access to or use of the Website.
7.2 Additional Terms. Your use of the Website is subject to all additional terms, policies, rules, or guidelines applicable to the Website or certain features of the Website that we may post on or link to from the Website (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
8. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
9. Ownership; Proprietary Rights. The Website is owned and operated by Endless. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Website (“Materials”) provided by Endless are protected by intellectual property and other laws. All Materials included in the Website are the property of Endless or our third-party licensors. Except as expressly authorized by Endless, you may not make use of the Materials. Endless reserves all rights to the Materials not granted expressly in these Terms.
10. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Website (“Feedback”), then you hereby grant Endless an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Website and create other products and services.
11. Indemnity. You are responsible for your use of the Website, and you will defend and indemnify Endless and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Endless Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Website; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
12. Disclaimers; No Warranties
THE WEBSITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE WEBSITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE ENDLESS ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE WEBSITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE ENDLESS ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE WEBSITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE WEBSITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
ALL PRODUCTS PURCHASED THROUGH THE WEBSITE ARE SUBJECT TO ADDITIONAL TERMS REGARDING THE USE OF SUCH PRODUCTS.
13. Limitation of Liability
IN NO EVENT WILL THE ENDLESS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE WEBSITE OR ANY MATERIALS OR CONTENT ON THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ENDLESS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
THE AGGREGATE LIABILITY OF THE ENDLESS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE WEBSITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Governing Law. These Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder and not legally subject to arbitration under the applicable laws, then in that case you and Endless agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating all such disputes.
16. Dispute Resolution and Arbitration
16.1 Generally. THIS CONTRACT CONTAINS AN ARBITRATION AGREEMENT. In the interest of resolving disputes between you and Endless in the most expedient and cost effective manner, you and Endless agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ENDLESS ARE EACH WAIVING THE RIGHT TO A TRIAL OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Notwithstanding subsection 16.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to: (a) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; and (b) seek injunctive relief, to the extent permitted by law or in connection with the arbitration, in a court of law.
16.3 Arbitrator. Any arbitration between you and Endless will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Endless.
16.4 Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”). Endless’ address for Notice is: Endless Mobile, Inc. 512 2nd Street, Third Floor, San Francisco, CA 94107. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 calendar days after the Notice is received, you or Endless may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Endless shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Endless shall pay you (I) the amount awarded by the arbitrator, if any, (II) the last written settlement amount offered by Endless in settlement of the dispute prior to the arbitrator’s award; or (III) $50.00, whichever is greater.
16.5 No Class Actions. YOU AND ENDLESS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Endless agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.6 Modifications. We may revise these Terms at any time without notice. By continuing to use this Website after you have been notified of a modification, you are agreeing to be bound by the then current version of these Terms.
16.7 Enforceability. If Subsection 16.5 is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 14 shall govern any action arising out of or related to these Terms.
18. Contact Information. The services hereunder are offered by Endless Mobile, Inc., located at 575 Market St, Ste 825, San Francisco, CA 94105. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.