ASPIREIQ TERMS OF SERVICE
(Last updated April 28, 2017)
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. IF YOU RESIDE IN THE UNITED STATES, PLEASE NOTE: SECTION 23 OF THESE TERMS OF SERVICE CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES WITH ASPIREIQ ARE RESOLVED. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN THE ARBITRATION PROVISION BELOW.
Acceptance of Terms
Welcome to the AspireIQ Site. AspireIQ, Inc. owns and operates www.aspireiq.com and any mobile, touch or affiliated websites or applications we may have now or in the future that refer to these Terms of Service (collectively, the “Site”). AspireIQ operates the Site to provide a lead-generation and information-sharing platform and related technology services to consumer product owners (“Brands”) and individuals wishing to review and comment on consumer products (“Creators”) (the “Services”).
Individuals who use the Site are “Users”, and “you” and “your” refer to Users. If you access the Site or accept these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that legal entity and, in such event, “you” and “your” will refer to that legal entity. “We”, “us”, or “our” refer to AspireIQ. In addition, in these Terms, unless the context requires otherwise, words in one gender include all genders and words in the singular include the plural and vice-versa.
THE SERVICE IS AN ONLINE PLATFORM THROUGH WHICH BRANDS MAY POSTS REQUESTS FOR INTERESTED CREATORS, CREATORS MAY RESPOND TO THE BRANDS, AND BRANDS AND CREATORS MAY ENTER INTO AGREEMENTS. YOU UNDERSTAND AND AGREE THAT ASPIREIQ IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN BRANDS AND CREATORS. ASPIREIQ HAS NO CONTROL OVER THE CONDUCT OF BRANDS, CREATORS, AND OTHER USERS OF THE SERVICE, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS.
AspireIQ reserves the right, at its sole discretion, to modify or discontinue, temporarily or permanently, the Site, 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. We will also update the “Last Updated Date” at the top of these Terms. Modifications to these Terms will automatically take effect upon posting; provided, however, that material changes to the Terms will be effective as to an existing User thirty (30) days after posting. By continuing to access or use the Site after we have posted 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 accessing or using the Site and Services.
The Services are intended solely for persons who are 18 or older. By accessing or using the Services you represent and warrant that you are not legally prohibited from accessing the Services under the laws of the country in which you access or use them.
About the Service; Registration
The Service allows Users to access information, and provides opportunities for Brands and Creators to initiate the registration process, request a proposal, respond to a proposal, enter into an agreement, or engage with AspireIQ through provided communication options.
To access and use the Services, you must register an account (“User Account”). We offer two ways to create an account - direct registration using an email address, or registration via a third party social networking sites.
Direct Registration: To create a User Account by using your email address, follow the prompts on the Site. You agree to provide accurate, current and complete information during registration and to update such information to keep it accurate, current and complete. You agree that you will safeguard your password and that you are solely responsible for any activities or actions under your User Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your User Account. You are solely responsible for your Content (defined below) and User Account.
Registration via Third Party: If you are a Creator, you may also create a User Account via certain third party social networking sites (“SNS”) (which may include, but not limited to, Facebook) (each such account, a “Third Party Account”) by following the prompts on the Site. You represent that you are entitled to disclose your Third Party Account login information to us and to grant us access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third party service providers.
Linking Third Party Accounts After Registration: Whichever way you first create a User Account, you may also thereafter link it to your Third Party Accounts, by either: (i) providing your Third Party Account login information through the Services; or (ii) expressly authorizing us to access your Third Party Account, as is permitted under the applicable terms and conditions of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to us and/or grant us access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third party service providers.
Whether you are a Brand, Creator, or other User, you acknowledge and agree that you are solely responsible for your User Account and all User Account information. You represent and warrant that any User Account information that you post, and any agreements you enter into with other Users (i) will not breach any agreements you have entered into with any third parties and (ii) will (a) comply with all applicable laws, tax requirements, licenses, rules and regulations that may apply to you and (b) not conflict with the rights of third parties.
PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICES ARE INTENDED TO BE USED TO FACILITATE BRANDS AND CREATORS CONNECTING AND ENTERING INTO AGREEMENTS DIRECTLY WITH EACH OTHER. ASPIREIQ CANNOT AND DOES NOT CONTROL THE CONTENT CONTAINED IN ANY BRAND OR CREATOR POSTED INFORMATION. ASPIREIQ IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL BRAND OR CREATOR POSTED INFORMATION, INCLUDING COMPLIANCE WITH APPLICABLE LAWS, RULES AND GUIDES (SUCH AS FTC GUIDES CONCERNING SPONSORED ENDORSEMENTS). ANY AGREEMENTS BETWEEN A BRAND AND CREATOR WILL BE MADE OR ACCEPTED AT THE USER’S OWN RISK.
Service Process; Fees
Users may use the Services to offer and accept opportunities to participate in a Brand’s marketing campaign. Brands may control which Creators are allowed to see and/or accept a proposal for a Brand’s campaign.
When two Users decide to enter into an agreement with each other, we will share information with each User as necessary or requested, such as (i) the first and last name, social media account handles, and contact information, (ii) links to the other User’s profile. (iii) details of the Brand, Creator, and/or Brand’s campaign (including campaign requirements). Users may enter into agreements with each other through the Services by following the prompts to establish all desired terms and mutual acceptance of the agreed terms.
When an agreement between Users is confirmed, we will send each User a message confirming such agreement. The message may be sent by in-application push message, posting to your account or Dashboard, email, and/or text message.
In consideration of the Services, we receive from a Brand a fee (the “Service Fee”) in exchange for providing Brands access to the Services. Brands must also accept and agree to our Subscription Services Agreement. The Service Fees are non-refundable. We do not currently charge Creators any service fee for use of the Service.
In order to use certain Services, Brands must provide account information for at least one valid Payment Method (e.g., a credit or debit card, ACH transfer authorization, or check). Brands hereby authorize AspireIQ to run credit card authorizations on all credit cards provided by Brands, to store credit card and banking or other financial details as Brand’s method of payment for Services, and to charge Brand’s credit card or any other Payment Method.
When a Brand User authorizes a payment to a Creator through the Services (either expressly or by not timely disputing a Creator’s payment request), Brand automatically and irrevocably authorizes and instructs AspireIQ to charge Brand’s Payment Method for the such amounts. When a Brand authorizes a payment using a Payment Method via the Services, Brand represents, warrants, and covenants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under these Terms or any agreement between a Brand and Creator, and such amounts cannot be collected from Brand’s Payment Method(s), Brand is solely responsible for paying such amounts by other means.
Registered Users may create a public profile listing, and contribute additional Content visible to other Users. “Content” means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials. You understand and agree that the placement or ranking of your Profile in search results may depend on a variety of factors, including, but not limited to, Brand or Creator preferences, ratings and/or offered rates. You acknowledge and agree that you alone are responsible for any and all Content you post on the Service.
Other Users will be able to see your Profile. If you are a Creator, Brands will be able to search your profile and will rely on the information to invite you to make a proposal on any offered work.
When you post Content on the Services, you represent and warrant that you have the right, power, and authority to post that Content and grant the licenses specified below. You further represent and warrant that by posting or providing such Content you will not violate third-party rights of any kind, including, without limitation, any Intellectual Property Rights, rights of publicity, and privacy rights. To the extent your Content may be copyrightable, you represent, warrant, and covenant that you are the owner of all the copyright rights to such Content and that we may exercise the rights to your Content granted under the Terms without any liability or obligation for any payment.
In addition, if you are a Creator, you are responsible for all social media postings you make, and you represent and warrant regarding those social media postings that: (a) they will be in compliance with all applicable laws, rules and guides (such as FTC Guides Concerning Sponsored Endorsements ); (b) that you have all necessary intellectual property and other rights to any posting; (c) your posting does not infringe the rights of any third party. We assume no responsibility for compliance with any agreements between Users, or duties owed by a User to a third party, or a User’s compliance with applicable laws, rules and regulations. We reserve the right, at any time and without prior notice, to remove or disable access to any Profile or Content for any reason, including Profiles or Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms or any of our then-current policies and guidelines, or otherwise harmful to the Service.
You understand and agree that AspireIQ is not involved in the interactions between Users and does not refer or endorse or recommend particular Brands or Creators. You also understand and acknowledge that AspireIQ does not edit, modify, filter, screen, monitor, endorse or guarantee User Content or the content of communications between Users.
Users are responsible for investigating and verifying to the extent they deem necessary the identity and credentials of other Users contacted via the Services. By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular User(s) or other third party(ies) who caused you harm, and you agree not to attempt to impose liability on, or seek any legal remedy from, AspireIQ with respect to such actions or omissions.
User Affirmations, Conduct and Use
By using the Service, you represent, warrant and agree to the following:
You are at least 18 years of age.
You are solely responsible for compliance with any and all laws, rules, regulations, or obligations that may apply to your use of the Service.
Nothing that you upload, publish, represent, warrant or transmit using the Site or Service, will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You will not use manual or automated software, devices, scripts, redirects, robots, other means or processes to access, “frame,” “mirror,” “scrape,” “crawl” or “spider” any web pages or other services contained in the Services.
You will not use the Service for any commercial or other purposes that are not expressly permitted by these Terms.
You will not copy, store or otherwise access any information contained on the Service for purposes not expressly permitted by these Terms.
Your will not interfere with or damage the Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
You will not impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity.
You will not systematically retrieve data or Content from the Service to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise.
You will not access, tamper with, or use non-public areas of the Site or Service, AspireIQ’s computer systems, or any third-party provider system.
You will not attempt to probe, scan, or test the vulnerability of any AspireIQ system or network or breach any security or authentication measures.
You will not avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by AspireIQ or any of AspireIQ’s providers or any other third party (including another Users) to protect the Site or Service.
You will not advocate, encourage, or assist any third party in doing any of the foregoing.
AspireIQ will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. AspireIQ may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms.
You acknowledge that AspireIQ has no obligation to monitor your access to or use of the Service, but has the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
The Service is protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Service, including the Site and all associated intellectual property rights, is the exclusive property of AspireIQ and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site.
Subject to your compliance with these Terms (and, if you are a Brand, your compliance with the Subscription Services Agreement), we grant you a limited, non-exclusive, revocable, non-transferable license, to (i) access and utilize the Services made available to you, and (ii) access and view any User Content to which you are permitted access. You have no right to sublicense the license rights granted in this section. You represent, warrant and agree that 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 the Services or Collective Content, 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 AspireIQ or its licensors, except for the licenses and rights expressly granted in these Terms. “Collective Content” means User Content and AspireIQ Content.
We may, in our sole discretion, permit Users to display, post, upload, publish, submit or transmit User Content. By making available any of your User Content on or through the Services, you hereby grant to AspireIQ a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to create derivative works, sublicense, use, edit, view, copy, adapt, modify, distribute, license, sell, host, market, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, and otherwise fully exploit such User Content on, through, or by means of the Services as currently exist or may be developed in the future. AspireIQ does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.
Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website location are covered by a single notification, a representative list of such works at that website;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
AspireIQ’s designated Copyright Agent to receive notifications of claimed infringement is AspireIQ, Inc., email: email@example.com, address: 530 Howard Street, Suite 350, San Francisco, CA 94105. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.
Counter-Notice. If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
• Your physical or electronic signature;
• Identification of the User Submission that has been removed or to which access has been disabled and the location at which the User Submission appeared before it was removed or disabled;
• A statement that you have a good faith belief that the User Submission was removed or disabled as a result of mistake or a misidentification of the User Submission; and
• Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
The Site may contain links to third-party websites or resources. You acknowledge and agree that AspireIQ 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 AspireIQ. 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.
AspireIQ may include advertisements on its own behalf or paid advertisements on behalf of interested companies and/or individuals on the Site. By clicking on the advertisements, you may be shifted to a website of the advertiser or receive other messages, information, or offers from the advertiser. You acknowledge and agree that AspireIQ is not liable for the privacy practices of advertisers or the content of their websites, information, messages or offers. Users are wholly liable for all communications with advertisers and for all transactions subsequently executed.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of AspireIQ used herein are trademarks or registered trademarks of AspireIQ. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
We may, in our discretion and without liability to you, with or without cause, with or without prior notice, and at any time terminate these Terms or your access to the Service. Upon termination we will promptly remit to you any funds in our control that we reasonably determine are owed to you. In the event we terminate these Terms, or your access to our Services or deactivate or cancel your User Account, you will remain liable for all funds due hereunder. You may cancel your User Account at any time by contacting us or following the prompts on the Site. Please note that if your User Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Services, including, but not limited to, any reviews or feedback.
IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ASPIREIQ EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ASPIREIQ MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. ASPIREIQ MAKES NO WARRANTY REGARDING THE QUALITY OF THE SITE.
YOU ACKNOWLEDGE AND AGREE TO INDEMNIFY AND HOLD ASPIREIQ HARMLESS IN CONNECTION WITH ANY CLAIM AND ANY DAMAGES OR EXPENSES ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE OR SERVICE REMAINS WITH YOU. NEITHER ASPIREIQ NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERYING THE SERVICES WILL BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ASPIREIQ HAS BEEN INFORMED OF THE POSSBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
You agree to release, defend, indemnify, and hold AspireIQ 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, or your violation of these Terms; (b) your use of the Services; (c) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (e) any claim that your use of the Services caused damage to a third party. AspireIQ shall have the right to control all defense and settlement activities.
You acknowledge and agree that a substantial portion of the compensation AspireIQ receives for making the Services available to you is collected through the Service Fee described above. Therefore, for 24 months from the time you identify or are identified by any other User through the Service (the “Non-Circumvention Period”), you agree to use the Services as your exclusive method to request, make, and receive all payments for work directly or indirectly with that User or arising out of your relationship with that User (the “AspireIQ Relationship”). You may opt-out of this obligation with respect to each such relationship only if Brand User or Creator User pays AspireIQ an “Opt-Out Fee” equal to the greater of (i) $7,500, or (ii) 20% of the amounts Brand User has paid through the Services in the prior 12 months.
You may not assign or transfer these Terms, by operation of law or otherwise, without AspireIQ’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. AspireIQ 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.
Unless otherwise specified herein, any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by AspireIQ by posting to the website or via the application. For notices or communications by AspireIQ made by e-mail, if any, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
You agree that (i) the Site and Services shall be deemed solely based in California, and (ii) the Site shall be deemed a passive website that does not give rise to personal jurisdiction over AspireIQ, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. You and we agree to submit to the personal jurisdiction of a state court located in San Francisco, California for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution Provision below.
YOU AND ASPIREIQ AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND WAIVED.
These Terms are intended to govern the agreement between AspireIQ and you to the extent permitted by all applicable laws, ordinances, rules, and regulations. If any provision of these Terms or the application thereof to any person or circumstances shall, for any reason or to any extent, be invalid or unenforceable, the remainder of these Terms and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
Dispute Resolution Provision
You and AspireIQ agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Site (collectively, “Disputes”) will be settled by binding arbitration; except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
You acknowledge and agree that you and AspireIQ are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and AspireIQ otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/ or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/ and a separate form for California residents at www.adr.org/. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and AspireIQ otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and AspireIQ submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $20,000, AspireIQ will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
No Class Action. YOU AND ASPIREIQ 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 we 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.
Changes. Notwithstanding the provisions of the “Modification” section above, if AspireIQ amends this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms) you will be notified in accordance with these Terms. You may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of AspireIQ’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and AspireIQ in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Enforceability. If the “No Class Action” section of this Dispute Resolution Provision is found to be unenforceable, or if the entire Dispute Resolution Provision is found to be unenforceable, then the entirety of the entirety of the Dispute Resolution Provision will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described above will govern any action arising out of or related to these Terms.
Right to Opt Out of Arbitration and Class Action/Jury Trial Waiver: You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying us in writing within 30 days of the date you first registered for the Services. To opt out, you must send a written notification to AspireIQ, Inc., Attn: Legal, 530 Howard Street, Suite 350, San Francisco, CA 94105 that includes (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions. Alternatively or in addition, you may send this written notification to email@example.com.
AspireIQ makes no claim that the Site is appropriate or may be downloaded outside the United States. If you access the Site from a location outside the United States, you do so at your own risk and are responsible for compliance with all applicable laws, rules, regulations or decrees of your jurisdiction.
Feedback and Reporting Misconduct
We welcome and encourage you to provide feedback, comments and suggestions (collectively “Feedback”) for improvements to the Site. You may submit feedback by emailing us at firstname.lastname@example.org. You acknowledge and agree that all Feedback will be the sole and exclusive property of AspireIQ and you hereby irrevocably assign to AspireIQ and agree to irrevocably assign to AspireIQ 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 AspireIQ’s request and expense, you will execute documents and take such further acts as AspireIQ may reasonably request to assist AspireIQ to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
The failure of AspireIQ 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 AspireIQ. 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 for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
Certain Services features, or website and/or application areas (and your access to or use of certain aspects of the Services or content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Services, or Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the website, application, Services, or content.
Notice to California Residents.
If you are a California resident, under California Civil Code § 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.
These Terms constitute the entire and exclusive understanding and agreement between AspireIQ and you regarding the Service, and supersede and replace any and all prior oral or written understandings or agreements between AspireIQ and you regarding the same.
Disclaimer: The original, legally binding version of this document is written in English. If it is translated into other languages by non-native English-speakers or by software, there may be discrepancies between the English version and the translated version. If so, the English version supersedes the translated version.
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