TERMS AND CONDITIONS
- 1. Agreement.
A. The following terms and conditions (the “Terms”) govern all access to and use of the BillSmart, LLC website (hereafter “BillSmart”, sometimes referred to herein as “us” or “we”). These Terms form the entire agreement (the “Agreement”) that governs BillSmart’s relationship with any individual or business (referred to herein as “you” or “Customer”). that accesses, uses, requests, or receives BillSmart’s Services.
B. BillSmart’s Services are made available to you only on the condition that you agree to be bound by this current Agreement and Terms. You may only use the BillSmart Services in compliance with this Agreement and all applicable laws, rules, and regulations. If you reside in a jurisdiction that restricts the use of internet-based applications, or the ability to enter into agreements such as this Agreement, due to your age or for any other reason, you are not permitted to use the BillSmart Services. By using BillSmart’s Services, you are representing that you have the legal capacity and authority to enter into this Agreement, and that you have reviewed, understand, and accept this Agreement without limitation or qualification. If you are accepting this Agreement on behalf of a company, organization, or other legal entity, you represent and warrant that you are authorized to do so. You further understand that by selecting BillSmart Services for purchase, entering your personal information where prompted, and indicating acceptance of the Agreement online, you are submitting an electronic signature and entering into a legally binding contract with us for the purchase of such Services.
C. We may modify the Agreement from time to time by notifying you of such modifications by any reasonable means, including by posting the revised version on the BillSmart website. Your continued use of the Services after any such changes indicates your acceptance of the modifications. You should check these Customer Terms regularly to review the current version. Note that any such modifications will not apply retroactively to any dispute between you and us arising prior to the date on which we posted the revisions or otherwise notified you of the changes.
D. PLEASE NOTE: By entering into this Agreement, you are agreeing that any dispute or claim arising out of or relating to this Agreement or the Services shall be resolved by final and binding arbitration in accordance with Section 12 of these Customer Terms titled “Dispute Resolution”. Please be certain that you understand this requirement and discuss any concerns with your attorney.
2. Services Description.
A. BillSmart Services are a negotiation Service for phone, cable and other bills that you have incurred for services you have contracted for through Providers. BillSmart negotiates directly with the Providers of phone, cable and other services (referred to herein as interchangeably Provider “services” or “products”) that you have engaged to provide you services for a fee (the “Service Providers”). BillSmart’s Services include the negotiating of ongoing and past due bills to save you money by lowering the monthly rate on your bill(s) for future billing periods and securing, when successful, one-time credits from your service provider. Our process involves reviewing your bill and negotiating with your Service Provider via phone and chat to get you a better rate and other discounts.
3. Your Authorization.
A. By signing up and agreeing to use BillSmart’s Negotiation Services and in accordance with the Terms set forth herein, you are granting us permission to negotiate with your Service Providers on your behalf. You hereby acknowledge and agree that we are authorized to use the information you provide to communicate with the applicable Provider, make changes to your account(s) with the Provider, and to modify the services and/or features that you receive from the Provider, in accordance with this Agreement. This means that if you request our Bill Negotiation Services, you expressly consent to any changes that we make to your account in order to reduce your bill as long as the changes do not reduce the features (internet speed, monthly data allowance, etc.) or quality of the products you receive from the Service Provider or extend the term of your contract. We may negotiate to obtain discounts, credits, or promotions to your account, or to add features or improve the quality of the products you receive, without obtaining additional permission or consent from you to make such changes for the purpose of reducing your bill. We may contact you and request your approval to extend the term of your contract with your Service Provider or make other changes to your services from the Provider, in which event we will rely on your verbal or email permission to do so. If you wish to place any limitations on our ability to make changes, you must communicate those restrictions to us when you sign up for the Services in the manner we specify, or no such limitations shall apply. After the Services have been completed, your Provider may limit your ability to revert to a prior plan.
B. When you sign up for our Bill Negotiation Service, to ensure that you continue to receive the lowest available rate without interruption, you also agree to allow BillSmart to monitor and perform the Bill Negotiation Service again when a reduced rate that you are receiving is due to expire or if we determine that your account is otherwise eligible for additional savings. The Service Fees for such additional Bill Reduction Services will be billed pursuant to Section 6 of this Agreement.
C. Your Service Provider may require your verbal confirmation or additional acknowledgment to verify that we are acting as your agent. If this is the case, we will not be able to perform the Services until you provide the additional information or confirmation in accordance with the method required by the Service Provider. In some instances, it may be necessary for our agents to represent to the Service Provider that they are the account holder in order to perform the BillSmart Services, and you consent to such representation for the sole purpose of performing the BillSmart Services.
D. You may not sign up for Bill Negotiation Services unless you have the authority to make changes to the applicable account with the Service Provider and to grant that authority to us. By requesting these Services, you represent and warrant that you have such authority. If you are not the account holder and you sign up for Services as an authorized representative of the account holder, you will be jointly and severally liable with the account holder for the fees incurred for the Services you have requested. You will be personally liable for all fees incurred or damages that result from signing up for Services without proper authorization, and also agree to indemnify us for any damages we may incur as a result
4. Provision and Use of Your Information.
A. In order to receive Services, you must provide us with the information we need to perform the Services. This includes the account holder’s name, your name and relationship to the account holder (if different), and your respective addresses, phone numbers, and email addresses, the name of the Provider, your Provider account number, the applicable password, pin number, or other security credentials to access the account, and any other specific information your Provider may require for us to make changes to your account. You will also provide BillSmart a copy of the current monthly billing statement for the account showing the products and features you receive and the amounts you are billed. You may upload a copy of the bill through our website or by emailing us at email@example.com.
B. You also agree to provide us with any additional information relevant to the negotiation prior to the start of the negotiation, including notifying us if you signed up for the product within the past year or are planning to cancel or switch Providers within the next year. We may decline to provide the requested Services based on the information provided in the exercise of our sole discretion.
C. You represent and warrant that all information you provide to us is accurate, complete, and correct. You agree that we may rely upon and share your information with our agents, referral partners, Service Providers, and otherwise as necessary in order to offer and provide the Services to you.
5. Negotiated Savings.
A. For Bill Negotiations, we calculate the total amount of savings that we negotiate for you (the “Negotiated Savings”) by comparing the new monthly rate that we obtain for you from the Service Provider against the current rate you are paying at the time of the negotiation for the duration the new rate will be in effect as well as any one-time credits that we are able to obtain for you through the course of the negotiation. In the case of monthly bills, the Negotiated Savings equals the amount by which the Provider has agreed to reduce your monthly bill multiplied by the number of months that you are eligible to receive the reduction, up to a maximum of 12 months (the “Savings Period”). We will inform you of the outcome of our negotiations, and if the Bill Negotiation is successful we will tell you what your new rate will be, the Savings Period, and the total amount of your Negotiated Savings. While we cannot guarantee that every Bill Reduction negotiation will result in Negotiated Savings, the negotiation is free if we don’t save you money.
B. The rate you are paying prior to the Bill Reduction that we use to calculate Negotiated Savings will be the amount we confirm with the Provider, which may be different from the billing statement you provided. For purposes of calculating the Negotiated Savings, the new negotiated rate will not include price increases occurring after the negotiation that arise from (1) one time purchases or fees of the Service Provider incurred by the account holder; (2) regularly scheduled price increases by the Provider that are applied generally and not specific to your account (e.g. an increase to the Broadcast TV Fee); (3) the addition of products or upgrades to the existing products on the account; or (4) the expiration of discounts, promotions, or credits on the account that were not put into place as a result of our negotiations.
C. If you ask us to cancel some but not all of the products you receive from a Service Provider and negotiate the remaining parts of your bill, the Negotiated Savings will be based on the original entire bill excluding the cost of the cancelled products. If you direct us to increase the quality or features of the products you receive from a Provider, the Negotiated Savings will be calculated based on the applicable non-discounted rate that the Provider indicates you would have been charged for those modified products, instead of the historic rate you were paying for the original products.
6. Payment for Services.
A. Our fee is 25% of the savings for the first year. If we don’t save you money, the negotiation is free. For example, if we negotiate a permanent $10 discount on your phone bill, the Negotiated Savings is $120 and the fee for our service is 25% of $120 or $30.
B. You agree to pay BillSmart all charges for the Services we perform for you pursuant to this Agreement by providing a valid method of payment during the enrollment process, then current or other agreed upon method with BillSmart, and agreeing to these terms of service. We do not accept payment by cash. We will inform you of the savings that we secure for you via an email and text receipt. You are then scheduled to be charged in 2 days. If the payment fails, we will continue to charge your payment method on file until we collect the outstanding balance due BillSmart. We will also send you email and text links where you can pay your outstanding balance. Unless otherwise stated at time of purchase, payment to BillSmart is due in full without deduction or setoff within nine (9) days of the invoice date.
C. By providing a payment method to us for payment of the Services, you authorize us to use such payment method for payment of all amounts owed to us hereunder. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party. We may determine and modify what payment methods we accept from time to time in our sole discretion.
D. You will be responsible for any charges incurred for refused or rejected payments, including but not limited to late fees, chargeback fees, fees for insufficient funds, or similar charges imposed by your financial institution. We may notify you about late payments through phone calls, email and/or text messages. We may in our sole discretion decide to accept incomplete payments from you, but in doing so we in no way waive our right to collect the remaining unpaid balance due BillSmart. If your outstanding balance for the fee for BillSmart services is 30 days past due, a late fee at a rate of $25 per month (or the maximum amount allowed by law if such amount is less) will be charged. In the event you fail to pay any amounts when due hereunder, you agree that we may report your failure to credit reporting agencies and/or refer such matter to an attorney or collection agency, in which event you agree to pay any and all costs we incur as a result of such action, including reasonable attorneys’ fees.
E. If you dispute the amounts you are being billed for or are dissatisfied with the Services for any reason, you agree to contact us in writing, provide the facts and circumstances that are the basis for the dispute, and cooperate with us in good faith to provide us the opportunity to remedy the situation, or issue a refund before requesting a chargeback, or making a complaint or filing a claim against us. If we are unable to resolve the dispute in this fashion, then you agree to follow the dispute resolution procedure set forth in Section 12 of these Customer Terms, below. If you do not notify us of your dispute of our invoice for the Services within thirty (30) days from the date of such invoice, the Service will be deemed accepted and valid.
F. It is your responsibility to confirm that the Negotiated Savings are reflected in the next bill you receive from your Provider, and to notify us within thirty (30) days of receipt of our invoice for Services if your bill does not show the Negotiated Savings that we indicated you would receive. Upon receipt of notice from you that your savings were not applied, we will research and contact the Provider to try to resolve the issue. If we determine that the Provider is not going to offer you the negotiated rate such that the Negotiated Savings will not be the amount originally calculated, we will recalculate the Negotiated Savings (if any) and issue an updated invoice and a refund of any overpayment if payment of the Service Fees was already received for the Bill Reduction. If you do not notify us that you did not receive the Negotiated Savings within thirty (30) days from the date of our invoice for the Services, the Negotiated Savings originally calculated will be deemed to be correct and will be assumed to have been applied to your account, and you will owe us any applicable Service Fees for the Services.
G. If you request Bill Reduction Services for a Provider product that you intend to terminate and you fail to notify us of this fact prior to the start of the Bill Reduction negotiation as required herein, you will be responsible for the Service Fee incurred based on the entire available Savings Period, including beyond your anticipated termination date. However, in the event a product for which you received Bill Reduction Services is unexpectedly terminated prior to the end of the Savings Period, you may notify us in writing no later than thirty (30) days after such termination to request a pro-rata credit based on the Negotiated Savings not actually received by reason of the termination. Your request must identify your account with us and include proof of the actual date of termination by your Provider. We will make adjustments to your account to the extent that we reasonably determine appropriate based on the circumstances in the form of a pro-rata credit to your account equal to the amount you have paid us in Service Fees for Negotiated Savings not actually received because of the termination. Such credit is non-transferrable, not redeemable for cash, and may only be used for Service Fees incurred by you for other Services purchased from us.
H. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. You are responsible for paying any such taxes and duties assessed in connection with this Agreement by any authority within or outside of the U.S., except for taxes payable on our net income.
7. Cancellation of Services and Agreement Termination.
A. You may cancel a request for Services by contacting us any time prior to commencement of the Services. If you wish to cancel after the Services have begun but are not yet completed, you will be responsible for reimbursing us for our reasonable costs expended in performing the Services up until such cancellation.
B. We reserve the right to restrict or cancel your access to our services and its content or any part or feature thereof at any time. We may decline to accept your request for Services or may elect to stop performing Services for you at any time in the exercise of our sole discretion.
C. You may terminate this Agreement at any time. You do not need a reason to terminate. Upon termination BillSmart will cease all effort on your behalf and you will no longer be able to use the Services. If you wish to terminate this Agreement after you have requested Services but before the Services have been completed, you must first cancel the Services as permitted herein. You may terminate the Agreement by giving us written notice of termination at the address shown at the end of this Agreement by a method that permits you to produce evidence that you terminated this Agreement. Upon any termination of this Agreement, all amounts owed by you for Services provided under this Agreement prior to termination will become immediately due and payable.
D. We may terminate this Agreement at any time and stop providing the Services without penalty or liability. We reserve the right to pursue all other available remedies in addition to termination in the event of your breach of this Agreement.
E. This Agreement will become effective upon your first use of the Services, and thereafter will continue until such time as you request your account to be cancelled or the Agreement is terminated as permitted herein. Sections 1, 3, 4, 6 through 12, and 14 will survive any termination of this Agreement in accordance with their respective terms.
A. You hereby agree to the use of electronic communication in order to enter into contracts and to purchase Services and agree and consent to the electronic delivery of notices, invoices, and other communications that we provide in connection with your account or Services (the “Communications”). Such Communications will be sent to the email address and/or phone number that you provide during the signup process as may be updated by you from time to time through the methods we designate. You further waive any rights or requirements under any laws or regulations in any jurisdiction, to the extent permitted under applicable law, which require an original, non-electronic signature or delivery or retention of non-electronic records.
B. It is your responsibility to keep the primary email address listed on your account with us up to date so that we can communicate with you electronically. Spam filtering of emails may require you to add our email address to your email address book. You understand and agree that an electronic communication is deemed successfully sent once emails are sent to the primary email address listed on your account, and our notice to you will be deemed to have been given on the first business day after sending by email. Notices to us must be sent in writing to the address shown at the end of these Customer Terms.
C. By entering into the Agreement, you are providing your consent to receive text alerts and marketing text messages from us. However, at any time, you may unsubscribe from marketing text messages by using the unsubscribe mechanism contained in such messages. You may also opt out of receiving marketing text message alerts by contacting our Customer Service department. You have the right to withdraw your consent to receive Communications electronically by sending us notice of such withdrawal and providing a valid mailing address for notices . However, in the case you have an outstanding balance with us, we still have the right to contact you to collect payment.
D. Posting or messaging on social media platforms is not considered a form of providing notice to us, and you should not rely on or assume that we receive any communications submitted through a social media platform.
A. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (1) THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (2) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE BILLSMART SERVICES, AND (3) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR REPRESENTATIVES, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY.
B. We do not represent or warrant that the BillSmart Services shall be without interruption, error-free, or completely secure. The Services are provided on an “as is” basis, “with all faults” and “as available” and your use of the Services is at your own risk. If you download or upload any content from or to the BillSmart website, you will be solely responsible for any damages incurred.
C. The Services are not intended to, and do not, constitute legal, professional, or financial advice, are not intended to be a substitute for such advice, and may not be used for such purposes. Always seek the advice of your attorney, tax advisor, financial planner, or other professional advisor with any questions you may have regarding such matters. Our representatives performing the Services are not authorized to provide any such advice or make any claims of guaranteed savings or representations of expected results on our behalf. No written or verbal statement by our representatives shall supplement or amend this Agreement. We do not guarantee that any savings or particular outcome will be achieved through the Services.
10. Limitations of Liability and Remedies.
A. TO THE FULLEST EXTENT PERMITTED BY LAW, OUR AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR THE SERVICES SHALL IN NO EVENT EXCEED THE AGGREGATE PAYMENTS ACTUALLY RECEIVED BY US FROM YOU UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, WE SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, GOODWILL, AND THE LIKE) ARISING OUT OF ANY CAUSE, INCLUDING BUT NOT LIMITED TO OUR DELAY, ACT, ERROR, OR OMISSION OR THAT OF OUR AGENTS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. If you are dissatisfied with the BillSmart Services, your sole and exclusive remedy is to discontinue accessing and using the BillSmart Services and terminate this Agreement. If you are dissatisfied with the Services, your sole and exclusive remedy is to terminate this Agreement and seek a refund of the Service Fees paid for such Services through the process described in Section 6.e. If you have any other dispute with us arising under this Agreement, you agree to resolve such dispute only in accordance with the Dispute Resolution process set forth in Section 12 hereof.
C. No action in any form arising out of this Agreement or any Services provided hereunder, excepting only a claim for indemnification, shall be instituted more than one (1) year after the cause of action has arisen.
A. You will indemnify and hold us and our directors, officers, members, shareholders, employees, agents, representatives, referral partners and vendors harmless with respect to any suits, claims, demands, damages, and losses (including reasonable attorneys’ fees) arising out of (i) your breach of this Agreement or any representation or warranty herein contained; (ii), any infringement by you of the copyright or intellectual property rights of any third party; (iii) your use or misuse of the Platform; (iv) your violation of applicable laws, rules or regulations in connection with your use of the Platform or Services; (v) our use and reliance on information or content provided by you pursuant to this Agreement; or (vi) any data or content that you submit, post, or otherwise provide to us, the Platform, or social media platforms.
12. Dispute Resolution.
- A. Informal Negotiations: To expedite resolution and reduce the cost of any dispute, controversy or claim, past, present, or future, between you and Company, including without limitation any disagreement, dispute, or claim related to or arising out of this Agreement, you and Company must and will attempt to negotiate any claim or dispute informally (the “Informal Negotiations”) before initiating any arbitration proceeding, or court proceeding to the extent a court proceeding is proper unless injunctive relief is being sought by Company in which instance Informal Negotiations are not required. Such Informal Negotiations will commence shortly following written notice. A party who intends to seek arbitration must and will first send to the other, by both certified mail if a physical mail address is provided, and email, a completed written Notice of Dispute (“Notice of Dispute”). The Notice of Dispute to Company is to be both mailed or otherwise delivered to Company, 7190 West Sunset Blvd Los Angeles, CA 90046 and by email to firstname.lastname@example.org. Company may send any Notice of Dispute to You to the physical address we have on file associated with Your BillSmart account, if we have one, and if not then by email or any other commercially reasonable method (including social media); it is Your responsibility to keep Your physical address and all other contact information up to date. All information called for in the Notice of Dispute must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
- B. ARBITRATION. If the claims or disputes described in the Notice of Dispute are not resolved through Informal Negotiations within 30 days after the Notice of Dispute is sent, You or Company may initiate arbitration proceedings. You and Company expressly agree to resolve any and all disputes not resolved through Informal Negotiations except those disputes expressly excluded in section 12.M through final and binding arbitration (“Arbitration Agreement”) except if you properly opt-out of arbitration. The United States Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement, which evidences a transaction involving commerce; the arbitrator shall apply Federal or California State law to all other matters.
- C. Except as may be otherwise set forth in this Arbitration Agreement, the arbitration will be commenced and conducted before a single arbitrator under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website (www.adr.org). If AAA ceases to provide arbitration service, then the term “AAA” shall mean and refer to J.A.M.S, and the arbitration shall be held under the J.A.M.S. Streamlined Arbitration Rules and Procedures, as modified by this Terms and Arbitration Agreement. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration: rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Arbitration Agreement. The arbitrator(s) shall be a retired judge or justice, or a duly licensed attorney with no less than 10 years of experience in arbitrating commercial disputes involving the claims in dispute. If the parties cannot agree upon an arbitrator within fifteen days of the filing of the demand for arbitration, the AAA shall select the arbitrator.
- D. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You must and will send a copy to Company at both the following address: 7190 West Sunset Blvd Los Angeles, CA 90046 and by email to email@example.com In the event Company initiates an arbitration against You, it will send a copy of the completed form to the physical address we have on file associated with Your BillSmart account, if we have one, and if not then by email or any other commercially reasonable method (including social media); it is Your responsibility to keep Your physical address and all other contact information up to date. Any settlement offer made by You or Company shall not be disclosed to the arbitrator.
- E. All claims or arbitrations filed, brought, initiated, or commenced (“initiated”) by You contrary to Sections 12A through 12D shall be deemed improperly initiated.
- F. Your filing, administration, location, arbitration fees, and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If the value of the relief sought is $75,000.00 or less, at your written request and if you are able to prove that you are unable to pay such costs, Company will advance all AAA arbitration organization fees and expenses. Each party will pay the fees and costs for his/her or its own attorneys and experts, subject to any remedies to which that party may later be entitled under applicable law. The arbitrator will make a decision in writing. Additionally, the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement. However, the preceding sentence shall not apply to the “Class Action Waiver” described herein.
- G. Excluded Disputes. You and Company agree that the following Disputes are excluded from this Arbitration Agreement: (1) any Dispute seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) individual claims in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for injunctive relief.
- H.PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON- INDIVIDUALIZED RELIEF: WE EACH AGREE THAT ANY AND ALL DISPUTES OR CLAIMS RELATING IN ANY WAY TO THE SITE, SERVICES OR THESE TERMS MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR CONSOLIDATED PROCEEDING. BY ENTERING INTO THIS TERMS AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND COMPANY ARE EACH WAIVING ANY RIGHT TO FILE A LAWSUIT, GO TO COURT, AND THE RIGHT TO A TRIAL BY JUDGE OR JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. (Arbitration procedures are typically, but not always, more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court.) Further, In the event any litigation should arise between You and Company in any state or federal court in a suit to vacate or enforce an arbitration award, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. IN ADDITION, YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS, AND YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION OR LITIGATE OR ARBITRATE ON A MULTI-PARTY, CLASS- WIDE, OR CONSOLIDATED BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, MULTI-PARTY, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN’T ALLOWED AND ARE WAIVED. UNLESS BOTH YOU AND COMPANY AGREE OTHERWISE IN WRITING DURING THE ARBITRATION, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, MULTI-PARTY, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS OR PARTIES. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
- I. Rules/Standards Governing Arbitration Proceeding
- a. A party who wishes to arbitrate a dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the earlier of the time as set forth in section 12.B, or the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator may award any remedy to which a party is entitled under applicable law, but remedies shall be limited to those that would be available to a party in their individual capacity, and no remedies that otherwise would be available to an individual under applicable law will be forfeited. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct reasonable and adequate civil discovery and present witnesses and evidence as reasonably needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The location of the arbitration proceeding shall take place in the city or county where you reside, unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator’s decision/award.
- b. No part of the proceedings shall be revealed or open to the public or the media. All evidence discovered or submitted is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court or arbitrator order, as may be applicable, or unless required by law. Notwithstanding the foregoing, no party shall be prevented from submitting to the arbitrator, or a court of law or equity, as may be applicable, any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or solely to seek injunctive or equitable relief to stop unauthorized use of any Platform or Services, or to stop intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described herein.
- c. Notwithstanding anything to the contrary in the rules or procedures of AAA, the arbitrator’s award shall be final and binding. The arbitrator will decide the substance of all claims in accordance with applicable law and rules, including regarding the admissibility of evidence, and including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall set forth in writing evidentiary rulings, findings of fact and conclusions of law, and in supported and reasoned decision(s) shall render all awards, including for baseless motions, motions not brought in good faith, and bad faith evasions, failures, and refusals, to comply with procedures, discovery, or proceedings, based thereon, and shall apply the law as the law is. Following application by any Party to a court of competent jurisdiction for an order entering, confirming, modifying, or vacating an award, the court shall, upon the request or motion of either party, have the duty, right and power to review: (a) whether the findings of fact rendered by the arbitrator(s) are supported by admissible evidence, and by the proper burden of proof; (b) whether, as a matter of law based on such findings of fact, the award should be confirmed, modified or vacated; and (c) whether the decision is thus properly supported by law and properly reasoned, and if not whether such portion as is not should be modified or vacated. Upon such determination, judgment shall be entered in favor of any Party consistent therewith. The Court shall grant attorneys’ fees and costs to the Party that prevails on any action, proceeding, motion, appeal, or the like, to oppose entry, confirmation, or to modify or vacate an arbitration award. The Parties agree to use reasonable efforts to maintain all matters relating to any proceeding (judicial or arbitration) hereunder confidential, including by seeking to have court filings sealed.
- J. The arbitrator shall not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
- K. Enforcement of Arbitration Award: In the event an arbitration decision, award or judgment is obtained, whether entered, filed or confirmed in court or not, the Party against which there may be obligation or against which the decision, award or judgment has been made agrees to pay all reasonable attorneys’ fees and costs incurred in the enforcement of any such agreement, decision, award or judgment.
- L. Severability: With the exception of any of the provisions in Section 12G of this Arbitration Agreement (titled “Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or a court, as applicable, decides that any part of this Arbitration Agreement is invalid or unenforceable, that portion will be severed and the other parts of this Arbitration Agreement shall still apply and will be given full force and effect. If an arbitrator or a court properly decides that any of the provisions in Section 12G of this Arbitration Agreement (titled “Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then with the exception of Sections 12A (Informal Negotiations), and 12E (improperly initiated claims), the entirety of this Arbitration Agreement (Section 12) shall be null and void, will be severed, and the remainder of the Agreement and the exceptions 12A (Informal Negotiations), and 12E (improperly initiated claims) will continue to apply.
- M. Opt-Out Procedure. With the exception of Sections 12A (Informal Negotiations), 12E (improperly initiated claims), and 12H (titled “Prohibition of Class and Representative Actions and Non-Individualized Relief”), You can reject this Arbitration Agreement (Section 12) by sending a letter via certified mail to Company at both the following address: 7190 West Sunset Blvd Los Angeles, CA 90046 and by email to firstname.lastname@example.org within thirty (30) days of first accepting this Arbitration Agreement. There are no exceptions to this opt-out procedure. By submitting the information required. You warrant and represent that the information You are submitting is true, correct, and complete. You are opting out of the agreement to arbitrate in the Arbitration Agreement (Section 12). This opt-out doesn’t affect any other parts of the Terms, including, for example, the controlling law provision or the requirements about in which courts legal disputes may be brought. This procedure is the only way You can opt out of the Arbitration Agreement. If You opt out of the Arbitration Agreement, all other parts of the Terms/ Agreement, including all other provisions of 12A (Informal Negotiations), 12E (improperly initiated claims), and 12H (titled “Prohibition of Class and Representative Actions and Non-Individualized Relief”), will continue to apply. Opting out of this particular Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that You may have with us. There are no exceptions to this opt-out procedure and requirements. We may email You at the primary email address You provide a confirmation of receipt of Your opt-out notice and require that You verify that You submitted the opt-out. If we do, and we do not promptly (no later than five calendar days) receive back a verification then You agree that Your attempt to opt-out is deemed ineffective.
- N. Future Amendments to the Arbitration Agreement: Notwithstanding any provision in the Terms to the contrary, You and we agree that if we make any amendment to this Arbitration Agreement (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Company prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Arbitration Agreement that have arisen or may arise between You and Company. We will attempt to notify You of amendments to the Arbitration Agreement by posting the amended terms on or through a Company Platform at least 30 days before the effective date of the amendments or by providing notice through any Company notice or message center, social media platform, and/or by email. If You do not agree to these amended terms, You must cease using the Platforms or Services within the 30 day period and You will not be bound by the amended terms. If You continue to use the Company Platforms or Services You will be deemed to have agreed to the amendments.
- O. Survival: This Arbitration Agreement and 12A (Informal Negotiations), 12E (improperly initiated claims), and 12H (titled “Prohibition of Class and Representative Actions and Non-Individualized Relief”), will survive the termination of Your relationship with Company.
A. The parties intend that the applicable Federal statutory laws and the laws of the State of Delaware should be used to interpret and enforce this Agreement.
B. Each provision of this Agreement applies to the fullest extent permitted by applicable law. If any provision of this Agreement is determined by an authority of competent jurisdiction to be invalid or unenforceable in part or in whole for any reason whatsoever, the validity of the remaining provisions or portions thereof shall not be affected thereby and such authority should reform this Agreement to the extent necessary in a manner that comes closest to expressing the intention of the invalid and unenforceable provision while rendering the otherwise unenforceable provision or portion thereof valid and enforceable.
C. Our waiver of the performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered as a waiver of any other covenant, condition or promise. Any delay in pursuing any remedy or in insisting upon full performance for any breach or failure of any covenant, condition or promise shall not prevent us from later pursuing any remedies or insisting upon full performance for the same or any similar breach or failure.
D. You may not assign this Agreement without our prior written consent. We may assign this Agreement at any time and without your consent, and upon such assignment we shall be relieved of any and all duties, obligations, and/or liabilities arising from this Agreement. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties hereto.
E. There are no third-party beneficiaries to this Agreement. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third-party beneficiary rights.
F. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
G. This Agreement constitutes the entire agreement between you and us and supersedes any prior agreements between you and us and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. This Agreement can only be amended by us, as provided in this Agreement. No written or verbal statement, advertisement, or product description will contradict, interpret, or supplement this Agreement.
H. This Agreement may be published in a number of languages for information purposes and ease of access by customers. It is only the English version that is the legal basis of the relationship between you and us, and in case of any discrepancy between a non-English version and the English version of this Agreement, the English version shall prevail.
14. Our Contact Information.
A. Inquiries and written notices required pursuant to this Agreement may be sent via email at email@example.com or 7190 West Sunset Blvd Los Angeles, CA 90046.
B. You may contact us for Customer Support at firstname.lastname@example.org or by phone at (212) 212-2337.
Mediavine Programmatic Advertising (Ver 1.1)
The Website works with Mediavine to manage third-party interest-based advertising appearing on the Website. Mediavine serves content and advertisements when you visit the Website, which may use first and third-party cookies. A cookie is a small text file which is sent to your computer or mobile device (referred to in this policy as a “device”) by the web server so that a website can remember some information about your browsing activity on the Website.
First party cookies are created by the website that you are visiting. A third-party cookie is frequently used in behavioral advertising and analytics and is created by a domain other than the website you are visiting. Third-party cookies, tags, pixels, beacons and other similar technologies (collectively, “Tags”) may be placed on the Website to monitor interaction with advertising content and to target and optimize advertising. Each internet browser has functionality so that you can block both first and third-party cookies and clear your browser’s cache. The “help” feature of the menu bar on most browsers will tell you how to stop accepting new cookies, how to receive notification of new cookies, how to disable existing cookies and how to clear your browser’s cache. For more information about cookies and how to disable them, you can consult the information at All About Cookies.
Without cookies you may not be able to take full advantage of the Website content and features. Please note that rejecting cookies does not mean that you will no longer see ads when you visit our Site. In the event you opt-out, you will still see non-personalized advertisements on the Website.
The Website collects the following data using a cookie when serving personalized ads:
- IP Address
- Operating System type
- Operating System version
- Device Type
- Language of the website
- Web browser type
- Email (in hashed form)
Mediavine Partners (companies listed below with whom Mediavine shares data) may also use this data to link to other end user information the partner has independently collected to deliver targeted advertisements. Mediavine Partners may also separately collect data about end users from other sources, such as advertising IDs or pixels, and link that data to data collected from Mediavine publishers in order to provide interest-based advertising across your online experience, including devices, browsers and apps. This data includes usage data, cookie information, device information, information about interactions between users and advertisements and websites, geolocation data, traffic data, and information about a visitor’s referral source to a particular website. Mediavine Partners may also create unique IDs to create audience segments, which are used to provide targeted advertising.
If you would like more information about this practice and to know your choices to opt-in or opt-out of this data collection, please visit National Advertising Initiative opt out page. You may also visit Digital Advertising Alliance website and Network Advertising Initiative website to learn more information about interest-based advertising. You may download the AppChoices app at Digital Advertising Alliance’s AppChoices app to opt out in connection with mobile apps, or use the platform controls on your mobile device to opt out.
For specific information about Mediavine Partners, the data each collects and their data collection and privacy policies, please visit Mediavine Partners.