Last updated: November 14, 2023
THIS IS A SUBSCRIPTION SERVICE THAT AUTOMATICALLY RENEWS. PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY (IN PARTICULAR, SECTION 5 "SUBSCRIPTION FEES AND PAYMENT") BEFORE STARTING TO COMPLETE A PURCHASE FOR KOSMO AUTO-RENEWING SUBSCRIPTION SERVICE. TO AVOID BEING CHARGED YOU MUST AFFIRMATIVELY CANCEL A SUBSCRIPTION OR A GUEST MODE IN YOUR APP STORE’S ACCOUNT SETTINGS AT LEAST 24 HOURS BEFORE THE END OF THE CURRENT SUBSCRIPTION PERIOD.
IF YOU ARE UNSURE HOW TO CANCEL A SUBSCRIPTION, PLEASE VISIT THE APPLE SUPPORT WEBSITE, GOOGLE PLAY HELP (OR ANY OTHER APP STORES SUPPORT PAGES). DELETING THE APP DOES NOT CANCEL YOUR SUBSCRIPTIONS. YOU MAY WISH TO MAKE A PRINTSCREEN OF THIS INFORMATION FOR YOUR REFERENCE.
1. ACCEPTANCE OF TERMS
1.1. Mobile application Kosmo (the "App") and content available via the App or our emails ("Content") are distributed by KOSMO APP PTE. LTD., a legal entity incorporated under the laws of Singapore, having it registered address at 68 Circular Road #02-01, Singapore, or other company as stated in an app store ("we" "us" "our" or the "Company"). The App, together with the Content, tools, transactions and other services available by using the App, are collectively referred to as the "Service".
1.2. Your access and use of the Service constitutes your agreement to be bound by these Terms and Conditions of Use (the "Terms"), which establishes a legally binding contractual relationship between you and the Company. For this reason, PLEASE READ THE TERMS CAREFULLY BEFORE USING THE SERVICE.
1.3. Please also review our Privacy Policy. The terms of the Privacy Policy and other supplemental terms, policies or documents that may be posted on the Service from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason.
1.4. Unless otherwise expressly provided herein, we will alert you about any changes by updating the "Last updated" date of these Terms and you waive any right to receive specific notice of each such change.
1.5. THESE TERMS CONTAIN IMPORTANT DISCLAIMERS (SECTION 2), DISCLAIMERS OF WARRANTIES (SECTION 7), LIMITATION OF LIABILITY (SECTION 8), AS WELL AS PROVISIONS THAT WAIVE YOUR RIGHT TO A JURY TRIAL, RIGHT TO A COURT HEARING AND RIGHT TO PARTICIPATE IN A CLASS ACTION (ARBITRATION AND CLASS ACTION WAIVER). UNLESS YOU OPT OUT WITHIN 30 DAYS OF FIRST USE OF OUR SERVICE AS PROVIDED FOR IN SECTION 13, ARBITRATION IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES AND IS MANDATORY EXCEPT AS SPECIFIED BELOW IN SECTION 12.
1.6. IF YOU DO NOT AGREE WITH ANY PART OF THESE TERMS, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO BE BOUND BY THESE TERMS, THEN DO NOT DOWNLOAD THE APP OR OTHERWISE ACCESS OR USE THE SERVICE.
2. IMPORTANT DISCLAIMERS
2.1. WE MAKE NO GUARANTEES THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS OR WILL PROVIDE ANY BENEFIT.
2.2. NOT ALL INFORMATION DESCRIBED IN THE APP ARE SUITABLE FOR EVERYONE. THE SERVICE IS INTENDED ONLY AS A TOOL WHICH MAY BE USEFUL IN ACHIEVING YOUR OVERALL LIFESTYLE GOALS. YOU ACKNOWLEDGE THAT IF YOUR ACTIVITIES ENCOURAGED OR INSPIRED BY THE SERVICE INVOLVE ANY RISKS, YOU ASSUME THOSE RISKS AND UNDERSTAND AND AGREE THAT YOU TAKE FULL RESPONSIBILITY FOR YOUR HEALTH, LIFE AND WELL-BEING, AS WELL AS THE HEALTH, LIVES AND WELL-BEING OF YOUR FAMILY AND CHILDREN (BORN AND UNBORN, AS APPLICABLE), AND ALL DECISIONS NOW OR IN THE FUTURE.
2.3. INFORMATION PROVIDED THROUGH OUR SERVICE IS FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY. THE SERVICE IS NOT INTENDED TO BE A SUBSTITUTE FOR ANY PROFESSIONAL ADVICE, INCLUDING BUT NOT LIMITED TO (A) PROFESSIONAL MEDICAL OR PSYCHIATRIC ADVICE, DIAGNOSIS, OR TREATMENT, OR (B) PROFESSIONAL FINANCIAL OR INVESTMENT ADVICE OR GUIDANCE, OR (C) PROFESSIONAL LEGAL ADVICE. NEVER DISREGARD OR DELAY SEEKING PROFESSIONAL MEDICAL ADVICE OR OTHER PROFESSIONAL ADVICE. YOUR RELIANCE ON THE INFORMATION PROVIDED BY THE SERVICE IS SOLELY AT YOUR OWN ELECTION OR CHOICE. ANY AND ALL DECISIONS THAT YOU MAKE THAT ARE BASED IN WHOLE OR IN PART UPON INFORMATION PROVIDED BY THE SERVICE WILL BE YOUR SOLE AND EXCLUSIVE RESPONSIBILITY.
3. SERVICE
3.1. This service is intended for dating based on horoscope compatibility. Access to the service can be on a free (Guest Mode) or paid (Basic and Premium tariff) basis in accordance with current tariffs. The Company has the right to change the functionality of access without prior notice.
3.2. As part of the service, you can give SuperLikes to other users. If you use this Service in Guest Mode or in the Basic tariff, then such Superlikes must be purchased separately, and if in the Premium tariff, then they are free and an integral part of this tariff.
3.3. You acknowledge that all the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information), data, other content, software and materials displayed on the Service or used by the Company to operate the Service (including the App and the Content and excluding any User Content (as defined below)) is proprietary to us or to third parties.
3.4. The Company expressly reserves all rights, including all intellectual property rights, in all of the foregoing, and except as expressly permitted by these Terms, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation of them is strictly prohibited. The provision of the Service does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights.
3.5. The information you submit to us as part of your registration, and any data, text and other material that you may submit or post to the App ("User Content") remain your intellectual property, and the Company does not claim any ownership of the copyright or other proprietary rights in such registration information and the User Content. Notwithstanding the foregoing, you agree that the Company may retain copies of all registration information and the User Content and use such information and the User Content as reasonably necessary for or incidental to its operation of the Service and as described in these Terms and the Privacy Policy.
3.6. You grant the Company the non-exclusive, worldwide, transferable, perpetual, irrevocable right to publish, distribute, publicly display and perform the User Content in connection with the Service.
3.7. Subject to these Terms, the Company grants you a non-transferable, non-exclusive, license (without the right to sublicense) to (i) use the Service solely for your personal, non-commercial purposes, and (b) install and use the App, solely on your own handheld mobile device (e.g., iOS, Android, etc. as applicable) and solely for your personal, non-commercial purposes.
3.8. You agree, and represent and warrant, that your use of the Service, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, you agree that you will comply with all applicable laws, regulations and ordinances relating to the Service or your use of it, and you will be solely responsible for your own individual violations of any such laws.
3.9. You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).
3.10. We retain the right to implement any changes to the Service (whether to free or paid features) at any time, with or without notice. You acknowledge that a variety of Company's actions may impair or prevent you from accessing the Service at certain times and/or in the same way, for limited periods or permanently, and agree that the Company has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any content or services.
3.11. Your access to and use of the Service is at your own risk. The Company will have no responsibility for any harm to your computing system, loss of data, or other harm to you or any third party, including, without limitation, any bodily harm, that results from your access to or use of the Service, or reliance on any information or advice.
3.12. The Company has no obligation to provide you with customer support of any kind. However, the Company may provide you with customer support from time to time, at the Company's sole discretion.
4. APP STORES, THIRD PARTY ADS, OTHER USERS
4.1. You acknowledge and agree that the availability of the App is dependent on the third party from which you received the App, e.g., the Apple iTunes App Store, Google Play, and/or other app stores (collectively, "App Stores" and each, an "App Store").
4.2. You agree to pay all fees charged by the App Stores in connection with the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable agreements, terms of use/service, and other policies of the App Stores. You acknowledge that the App Stores (and their subsidiaries) are a third-party beneficiary of these Terms and will have the right to enforce these Terms.
4.3. The Service may contain links to third party websites or resources and advertisements for third parties (collectively, "Third Party Ads"). Such Third Party Ads are not under the control of the Company and the Company is not responsible for any Third Party Ads. The Company provides these Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Ads. Advertisements and other information provided by Third Party Sites Ads may not be wholly accurate. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources. When you link to a third party site, the applicable service provider's terms and policies, including privacy and data gathering practices govern. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. Your transactions and other dealings with Third Party Ads that are found on or through the App, including payment and delivery of related goods or services, are solely between you and such merchant or advertiser.
4.4. Each user of the Service is solely responsible for any and all his or her User Content. Because we do not control the User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Service users are solely between you and such user. You agree that the Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Service user, we are under no obligation to become involved. You agree that in case of violation of the Terms and Conditions of Use and mutual respect towards other users, the Company has the right to ban at its own discretion without explanation.
4.5. You hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of any App Store, any other Service users, or any Third Party Ads.
5. SUBSCRIPTION FEES AND PAYMENT
5.1. The App is free to download. However, certain features of the Service are offered on a subscription basis for a fee. You will pay an App Store the applicable fees (and any related taxes) as they become due.
5.2. To the maximum extent permitted by applicable laws, we may change subscription fees at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the App and/or by sending you an email notification. If you do not wish to pay the new fees, you can cancel the applicable subscription prior to the change going into effect.
5.3. You authorize the App Stores to charge the applicable fees to the payment card that you submit.
5.4. By signing up for certain subscriptions, you agree that your subscription may be automatically renewed. Unless you cancel your subscription you authorize the App Stores to charge you for the renewal term. The period of auto-renewal will be the same as your initial subscription period unless otherwise disclosed to you on the Service. The renewal rate will be no more than the rate for the immediately prior subscription period, excluding any promotional and discount pricing, unless we notify you of a rate change prior to your auto-renewal. You must cancel your subscription in accordance with the cancellation procedures disclosed to you for the particular subscription. We will not refund fees that may have accrued to your account and will not prorate fees for a canceled subscription.
5.5. The Service and your rights to use it expire at the end of the paid period of your subscription. If you do not pay the fees or charges due, we may make reasonable efforts to notify you and resolve the issue; however, we reserve the right to grant Guest Mode to the Service (and may do so without notice).
5.6. Subscriptions purchased via an App Store are subject to such App Store's refund policies. This means we cannot grant refunds. You will have to contact an App Store support.
5.7. You can purchase additional SuperLikes in the Guest Mode and Basic tariffs according to the tariffs of your region.
6. USER REPRESENTATIONS AND RESTRICTIONS
6.1. By using the Service, you represent and warrant that:
6.1.1. you have the legal capacity and you agree to comply with these Terms;
6.1.2. you are not under the age of 18;
6.1.3. you will not access the Service through automated or non-human means, whether through a bot, script or otherwise;
6.1.4. you are not allowed to upload inappropriate content that may offend anyone or +18 content;
6.1.5. you will not use the Service for any illegal or unauthorized purpose;
6.1.6. you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a "terrorist supporting" country;
6.1.7. you are not listed on any U.S. government list of prohibited or restricted parties; and
6.1.8. your use of the Service will not violate any applicable law or regulation.
6.2. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to refuse any and all current or future use of the Service (or any portion thereof).
6.3. You may not access or use the Service for any purpose other than that for which we make the Service available. The Service may not be used in connection with any commercial endeavours except those that are specifically endorsed or approved by us.
6.4. As a user of the Service, you agree not to:
6.4.1. systematically retrieve data or other content from the Service to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
6.4.2. make any unauthorized use of the Service;
6.4.3. make any modification, adaptation, improvement, enhancement, translation, or derivative work from the Service;
6.4.4. use the Service for any revenue-generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended;
6.4.5. make the Service available over a network or other environment permitting access or use by multiple devices or users at the same time;
6.4.6. use the Service for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the Service;
6.4.7. use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the Service;
6.4.8. circumvent, disable, or otherwise interfere with security-related features of the Service;
6.4.9. engage in unauthorized framing of or linking to the Service;
6.4.10. interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service;
6.4.11. decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Service;
6.4.12. attempt to bypass any measures of the Service designed to prevent or restrict access to the Service, or any portion of the Service;
6.4.13. upload or distribute in any way files that contain viruses, worms, trojans, corrupted files, or any other similar software or programs that may damage the operation of another's computer;
6.4.14. use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Service, or using or launching any unauthorized script or other software;
6.4.15. use the Service to send automated queries to any website or to send any unsolicited commercial e-mail;
6.4.16. disparage, tarnish, or otherwise harm, in our opinion, us and/or the Service;
6.4.17. use the Service in a manner inconsistent with any applicable laws or regulations; or
6.4.18. otherwise, infringe these Terms.
7. DISCLAIMER OF WARRANTIES
THE APP, CONTENT AND OTHER ASPECTS OF THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE". THE APP, CONTENT AND OTHER ASPECTS OF THE SERVICE ARE PROVIDED WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE COMPANY AND ITS AFFILIATES, LICENSORS AND SUPPLIERS DO NOT WARRANT THAT: (I) THE SERVICE, CONTENT OR OTHER INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (II) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (III) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (IV) THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) ANY RESULT OR OUTCOME CAN BE ACHIEVED.
8. LIMITATION OF LIABILITY
8.1. IN NO EVENT SHALL WE (AND OUR AFFILIATES) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE (INCLUDING THE APP OR CONTENT), OR THIRD PARTY ADS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE (INCLUDING THE APP, CONTENT AND USER CONTENT), AND THIRD-PARTY ADS ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTING SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
8.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE COMPANY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE APP, CONTENT OR SERVICE IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO THE COMPANY FOR ACCESS TO AND USE OF THE SERVICE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE TERMS BETWEEN THE COMPANY AND YOU.
8.3. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
9. INDEMNITY
You agree to indemnify and hold the Company, its successors, subsidiaries, affiliates, any related companies, its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Service, (ii) your User Content, or (iii) your violation of these Terms. The Company reserves the right, at your expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us and you agree to cooperate with our defence of these claims. You agree not to settle any matter without the prior written consent of the Company. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
10. INTERNATIONAL USE
The Company makes no representation that the Service is accessible, appropriate or legally available for use in your jurisdiction, and accessing and using the Service is prohibited from territories where doing so would be illegal. You access the Service at your own initiative and are responsible for compliance with local laws.
11. COPYRIGHT POLICY
11.1. This policy relates to the "Chats" section of the App (the “Chats”) and sets forth how the copyright holders may remove allegedly infringing materials available on Chats.
11.2. We respect the intellectual property of others and expect our users to do the same. We do not allow posting, sharing, or sending any content on the Chats that violates or infringes someone else’s copyrights. We will promptly remove materials in accordance with the Digital Millennium Copyright Act (“DMCA”) when properly notified that the materials infringe a third party's copyright. We will also, in appropriate circumstances, terminate the access to Chats of repeat copyright infringers.
11.3. To request the removal of materials allegedly infringing the copyright of others, your written notice (the "DMCA Notice") must include substantially following:
A. Your physical or electronic signature.
B. Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works, a representative list of such works.
C. Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
D. Adequate information by which we can contact you (including your name, postal address, telephone number, and email address).
E. A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
F. A statement that the information in the written notice is accurate.
G. A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
If you fail to comply with all of the requirements to the DMCA Notice, it may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on Chats is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
11.4. If you are the App user who wishes to challenge the removal of materials on Chats caused by a DMCA notice, you must file a counter-notice containing the following:
A. Your name, address, and telephone number.
B. A description of the material that was removed and the location on Chats where it previously appeared.
C. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
D. A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, (or if you reside outside the United States for any judicial district in which the App may be available) and that you will accept service from the person (or an agent of that person) who provided us with the complaint at issue.
You may submit this notice to the designated copyright agent indicated in the section 11.3 above.
The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice. Please be aware that if you knowingly materially misrepresent that material or activity on Chats was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.
11.5. We will terminate access to Chats to users that receive three (3) DMCA strikes. A “DMCA strike” accrues each time when material published by a user is removed from Chats due to a DMCA Notice. We may group multiple DMCA Notices received within a short period of time as a single DMCA strike.
We may remove a DMCA strike in appropriate circumstances, such as where (1) the underlying material is ultimately restored due to a DMCA counter-notice; or (2) the claimant withdraws the underlying notice.
12. MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
12.1. PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
12.2. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
12.3. YOU AND THE COMPANY, AND EACH OF ITS RESPECTIVE AGENTS, CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND ASSIGNS, AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICE, OR THE PRIVACY POLICY, UNLESS YOU ARE LOCATED IN A JURISDICTION THAT PROHIBITS THE EXCLUSIVE USE OF ARBITRATION FOR DISPUTE RESOLUTION.
12.4. Arbitration is more informal way to settle disputes than a lawsuit in court. A neutral arbitrator instead of a judge or jury is used in arbitration, which allows for more limited discovery than in court, and is subject to very limited review by courts. The same damages and relief that a court can award can be awarded by arbitrators. Please see more information about arbitration at https://www.adr.org.
12.5. The arbitration shall be conducted exclusively in English. A single, independent and impartial arbitrator with his or her primary place of business in Alexandria, Virginia (if you are from the United States) or in any countries (if you are not from the United States) will be appointed pursuant to the Rules, as modified herein. You and the Company agree to comply with the following rules, which are intended to streamline the arbitration process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award the arbitrator renders may be entered in any court of competent jurisdiction.
12.6. TO THE FULLEST EXTENT PERMITTED UNDER LAW, YOU AND THE COMPANY AGREE THAT YOU AND THE COMPANY 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, REPRESENTATIVE, OR CONSOLIDATED PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISION IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
12.7. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Policy, and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration clause can be enforced against a non-party to this agreement and whether a non-party to these Terms can enforce its provision against you or us.
12.8. Barring extraordinary circumstances, the arbitrator will issue his or her final, confidential decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days upon a showing of good cause and in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the Commonwealth of Virginia without regard to its conflicts of laws principles in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act ("FAA") will govern the interpretation, enforcement, and proceedings pursuant to this Section 12. Any award rendered shall be final, subject to appeal under the FAA.
12.9. The above stated provisions of this Section 12 shall not apply to any claim in which either party seeks equitable relief to protect such party's copyrights, trademarks, patents, or other intellectual property. For the avoidance of doubt, you agree that in the event the Company or a third party breaches these Terms, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against us, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in these Terms.
12.10. You and we agree that, notwithstanding any other rights a party may have at law or in equity, any claim arising out of or related to these Terms (including the Privacy Policy) or the Service, excluding a claim for indemnification, must be initiated with the AAA or filed in small claims court in Alexandria, Virginia within one (1) year after the claim accrues. Otherwise, such cause of action is permanently and forever barred. This one (1) year period includes the thirty (30) day pre-dispute procedure set forth in sub-clause 12.5 above.
12.11. All claims you bring against the Company must be resolved in accordance with this Section. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, the Company may recover attorneys' fees and reimbursement of its costs, provided that the Company has notified you in writing of the improperly filed claim, and you fail to promptly withdraw such claim.
12.12. In the event that we make any material change to this arbitration provision (other than a change to our Arbitration Notice Address), you may reject any such change by sending us written notice to our Arbitration Notice Address within thirty (30) days of the change, in which case your Account and your license to use the Service will terminate immediately, and this Section, as in effect immediately prior to the amendments you reject, will survive the termination of these Terms.
12.13. If only clause 12.6 paragraph above or the entirety of this Section 12 is found to be unenforceable, then the entirety of this Section 12 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 13 will govern any action arising out of or related to this Agreement.
12.14. YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION.
12.15. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST USE, OR ATTEMPT TO USE, THE SERVICE BY CONTACTING US VIA OUR SUPPORT OR TO THE ARBITRATION NOTICE ADDRESS. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE OPTING OUT AND CONTAINING ENOUGH DETAILS ABOUT YOU FOR US TO BE ABLE TO IDENTIFY YOU WITHIN THIRTY (30) DAYS. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.
13. GOVERNING LAW
13.1. Governing law: The laws of Singapore, excluding its conflicts of law principles, govern these Terms and your use of the Service.
13.2. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of:
13.2.1. the state and federal courts in the City of Alexandria, Virginia – if you are a resident of the United States; or
13.2.2. the courts of Singapore– if you are not a resident of the United States; and you hereby irrevocably submit to personal jurisdiction and venue in such courts, and waive any defense of improper venue or inconvenient forum.
14. MISCELLANEOUS PROVISIONS
14.1. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to these Terms will impair any such right or be construed to be a waiver thereof, and a waiver by the Company of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained.
14.2. Subject to Section 13, if any provision of these Terms is found to be invalid or unenforceable, then these Terms will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.
14.3. Except as otherwise expressly provided herein, these Terms set forth the entire agreement between you and the Company regarding its subject matter, and supersede all prior promises, agreements or representations, whether written or oral, regarding such subject matter.
14.4. The Company may transfer or assign any and all of its rights and obligations under these Terms to any other person, by any way, including by novation, and by accepting these Terms you give the Company consent to any such assignment and transfer. You confirm that placing on the Service of a version of these Terms indicating another person as a party to the Terms shall constitute valid notice to you of the transfer of Company's rights and obligations under the Agreement (unless otherwise is expressly indicated).
14.5. All information communicated on the Service is considered an electronic communication. When you communicate with us through or on the Service or via other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication. You further acknowledge and agree that by clicking on a button labeled "SUBMIT", "CONTINUE", "REGISTER", "I AGREE" or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICE.
14.6. In no event shall the Company be liable for any failure to comply with these Terms to the extent that such failure arises from factors outside the Company's reasonable control.
15. CONTACT
If you want to send any notice under these Terms or have any questions regarding the Service, you may contact us at [email protected].
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I HAVE READ THESE TERMS AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.