1. Use of the Services and the CrowdClock Properties.. The Application, the Website, the Services, and the information and content available on the Website and in the Services (as these terms are defined below) (collectively, the "CrowdClock Properties") are protected by copyright laws throughout the world. Subject to the Terms, CrowdClock grants you a limited, non-transferable, non-sublicensable, revocable license to reproduce portions of the CrowdClock Properties and to download, install, and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application, each for the purpose of using the Services: (a) in the event that you are a Consumer User, solely for your personal purposes or (b) in the event that you are a Business User, solely for your internal business purposes. Unless otherwise specified by CrowdClock in a separate license, your right to use the CrowdClock Properties is subject to the Terms. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an "App Store Sourced Application"), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service.
1.1 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the CrowdClock Properties or any portion of the Website, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other aspect of the CrowdClock Properties (including images, text, page layout or form) of CrowdClock; (c) you shall not use any metatags or other "hidden text" using CrowdClock's name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the CrowdClock Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to "scrape" or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the CrowdClock Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the CrowdClock Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the CrowdClock Properties. Any future release, update or other addition to the CrowdClock Properties shall be subject to the Terms. CrowdClock, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the CrowdClock Properties terminates the licenses granted by CrowdClock pursuant to the Terms.
1.2 Third-Party Materials. As a part of the CrowdClock Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for CrowdClock to monitor such materials and that you access these materials at your own risk.
2.1 Registering your Account. In order to access certain features of the the CrowdClock Properties you are required to become a Registered User. For purposes of the Terms, a "Registered User" is a User who has registered an account on the Website or Application ("Account") or has a valid account on the social networking service ("SNS") through which the User has connected to the Services (each such account, a "Third-Party Account"). If you are a Business User, you may create an account to enable Consumer Users to schedule Appointments with you ("Business Account"). As a Business User you may also sync the CrowdClock calendar with your own calendar. Currently we support iCal, and Google Cal. If you are a Consumer User, you may create an account for initiating Appointments with other Consumer Users or Business Users ("Consumer Account").
2.2 Access through an SNS. If you access the Services through an SNS as part of the functionality of the Website, Application, and the Services, you may link your Account with Third-Party Accounts, by allowing CrowdClock to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to CrowdClock and/or grant CrowdClock 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 CrowdClock to pay any fees or making CrowdClock subject to any usage limitations imposed by such third-party service providers. Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Terms. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND COMPANY DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. CrowdClock makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement and CrowdClock is not responsible for any SNS Content.
2.3 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services' registration form (the "Registration Data"); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the CrowdClock Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the CrowdClock Properties by minors. You may not share your Account or password with anyone, and you agree to (1) notify CrowdClock immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or CrowdClock has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, CrowdClock has the right to suspend or terminate your Account and refuse any and all current or future use of the CrowdClock Properties (or any portion thereof). CrowdClock reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party's rights.
2.4 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the CrowdClock Properties, including but not limited to, a mobile device that is suitable to connect with and use the CrowdClock Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the CrowdClock Properties.
3. Business Services. The following terms apply only to Business Users.
3.1 Business Accounts. CrowdClock is providing the Services as a venue for connecting you with Consumer Users who wish to schedule Appointments with you. You acknowledge that there is no employment, contractor, or joint-venture relationship between you and CrowdClock. BY CREATING A BUSINESS ACCOUNT, YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY APPOINTMENTS THAT CONSUMER USERS SCHEDULE WITH YOU.
3.2 Account Restrictions. If you are a Business User who wishes to solicit Appointments with Consumer Users, you may not use a Consumer Account for such purposes. You represent and warrant that you will use any information obtained from the Services solely in connection with the Services and your scheduled Appointments, and will not use such information in order to contact, advertise to, solicit, or sell any products or services to any User without that User's prior explicit written consent. You will not attempt to impersonate another User or person, including, without limitation, any employee of CrowdClock or another business. At all times, you will use the Services in a manner consistent with these Terms and any and all applicable laws and regulations.
3.3 Payment. You agree to pay all fees, invoices or charges to your Business Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. CrowdClock will periodically invoice your Business Account for each Appointment made by a Consumer User during the applicable billing period in accordance with CrowdClock's then current billing rates. You must provide CrowdClock's third party payment processor with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) ("Payment Provider") as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing CrowdClock's third party payment processor with your credit card number and associated payment information, you agree that CrowdClock is authorized to immediately invoice your Account for all fees and charges due and payable to CrowdClock hereunder and that no additional notice or consent is required. You agree to immediately notify CrowdClock of any change in your billing address or the credit card used for payment hereunder. CrowdClock reserves the right at any time to change its prices and billing methods, either immediately upon posting on the CrowdClock Properties or by e-mail delivery to you.
3.4 Taxes. CrowdClock's fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to CrowdClock, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and you will indemnify CrowdClock for any liability or expense we may incur in connection with such Sales Taxes. You agree to make all payments of fees to CrowdClock free and clear of, and without reduction for, any withholding taxes and such taxes will be your sole responsibility. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, "Sales Tax" shall mean any sales or use tax, and any other tax measured by sales proceeds, that CrowdClock is permitted to pass to its customers that is) the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
4. Responsibility for Content. You acknowledge that all Content, including the CrowdClock Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not CrowdClock, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available ("Make Available") through the CrowdClock Properties ("Your Content"), and other Users of the CrowdClock Properties, and not the CrowdClock, are similarly responsible for all Content they Make Available through the CrowdClock Properties ("User Content").
5.1 CrowdClock Properties. Except with respect to Your Content and User Content, you agree that CrowdClock and its suppliers own all rights, title and interest in the CrowdClock Properties (including but not limited to titles, computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the CrowdClock Properties.
5.2 Trademarks. CrowdClock's name and other related graphics, logos, service marks and trade names used on or in connection with the CrowdClock Properties are the trademarks of CrowdClock and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the CrowdClock Properties are the property of their respective owners.
5.3 Your Content. CrowdClock does not claim ownership of Your Content. You grant CrowdClock a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the CrowdClock Properties to you and to our other Users. When you as a User post or publish Your Content on or in the CrowdClock Properties, you represent that you have the authority to grant the foregoing license. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the CrowdClock Properties.
5.4 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to CrowdClock through its suggestion, feedback, or similar pages ("Feedback") is at your own risk and that CrowdClock has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to CrowdClock a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the CrowdClock Properties.
6. User Conduct. As a condition of use, you agree not to use the CrowdClock Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any Content on or through the CrowdClock Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without CrowdClock's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of CrowdClock; (vi) interferes with or attempts to interfere with the proper functioning of the CrowdClock Properties or uses the CrowdClock Properties in any way not expressly permitted by the Terms; or (vii) to attempt or engage in, any potentially harmful acts that are directed against the CrowdClock Properties, including but not limited to violating or attempting to violate any security features of the CrowdClock Properties, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in the CrowdClock Properties, introducing viruses, worms, or similar harmful code into the CrowdClock Properties, or interfering or attempting to interfere with use of the CrowdClock Properties by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing", or "crashing" the CrowdClock Properties.
7. Interactions with Other Users. You are solely responsible for your interactions with other Users of the Services, including your Appointments, and any other parties with whom you interact through the Services; provided, however, that CrowdClock reserves the right, but has no obligation, to intercede in such disputes. You agree that CrowdClock will not be responsible for any liabilities incurred as the result of such interaction.
8. Third-Party Services.
8.1 Third-Party Websites & Ads. The CrowdClock Properties may contain links to third-party websites ("Third-Party Websites") and advertisements for third parties (collectively, "Third-Party Websites & Ads"). When you click on a link to a Third-Party Website or Ad, we will not warn you that you have left the CrowdClock Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of CrowdClock. CrowdClock is not responsible for any Third-Party Websites & Ads. CrowdClock provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites & Ads, or their products or services. You use all links in Third-Party Websites & Ads at your own risk.
8.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from which you received the Application license, e.g., the Apple iPhone or Android app stores ("App Store"). You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store's terms and policies) when using the CrowdClock Properties, including the Application.
9. Indemnification. You agree to indemnify and hold CrowdClock, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the "CrowdClock Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the CrowdClock Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; (e) your interactions with any other Users (including your Appointments); or (f) your violation of any applicable laws, rules or regulations. CrowdClock reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with CrowdClock in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the CrowdClock Properties.
10. Disclaimer of Warranties.
(a) As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE CROWDCLOCK PROPERTIES IS AT YOUR SOLE RISK, AND THE CROWDCLOCK PROPERTIES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. CROWDCLOCK MAKES NO WARRANTY REGARDING APPOINTMENTS AND WILL NOT BE LIABLE FOR ANY DAMAGES ARISING AS A RESULT OF MISSED OR CANCELLED APPOINTMENTS. THE CROWDCLOCK PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CROWDCLOCK MAKES NO WARRANTY REGARDING THE SERVICES PROVIDED BY BUSINESS USERS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TCROWDCLOCK OR THROUGH THE CROWDCLOCK PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(b) THE CROWDCLOCK PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE CROWDCLOCK PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE CROWDCLOCK PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CROWDCLOCK PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE CROWDCLOCK PROPERTIES WILL BE CORRECTED. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. CROWDCLOCK MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
10.2 No Liability for Conduct of Other Parties. YOU ACKNOWLEDGE AND AGREE THAT THE CROWDCLOCK PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE CROWDCLOCK PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES (INCLUDING ANY MISSED APPOINTMENTS THAT ARE SCHEDULED WITH THE APPLICABLE USER), INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE CROWDCLOCK PROPERTIES. YOU UNDERSTAND THAT CROWDCLOCK DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE CROWDCLOCK PROPERTIES.
11. Limitation of Liability.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL CROWDCLOCK PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE CROWDCLOCK PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT CROWDCLOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS (INCLUDING ANY USERS WITH WHOM YOU MAKE APPOINTMENTS) OF THE CROWDCLOCK PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE CROWDCLOCK PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE CROWDCLOCK PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON CROWDCLOCK PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE CROWDCLOCK PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE CROWDCLOCK PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT PAID BY YOU TO CROWDCLOCK AS A RESULT OF YOUR USE OF THE CROWDCLOCK PROPERTIES IN THE TWELVE (12) MONTH PERIOD PRECEDING YOUR CLAIM. IF YOU HAVE NOT PAID CROWDCLOCK ANY AMOUNTS DURING SUCH PERIOD, CROWDCLOCK'S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED FIFTY DOLLARS ($50).
11.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CROWDCLOCK AND YOU.
12. Term and Termination. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the CrowdClock Properties, unless terminated earlier in accordance with the Terms. If you have materially breached any provision of the Terms, or if CrowdClock is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), CrowdClock has the right to suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in CrowdClock's sole discretion and that CrowdClock shall not be liable to you or any third-party for any termination of your Account. If you want to terminate the Services provided by CrowdClock, you may do so by (a) notifying CrowdClock at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to CrowdClock's address set forth below. Termination of any Service may include removal of access to such Service and barring of further use of the Service and may also include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. CrowdClock will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13.1 Breach. In the event that CrowdClock determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the CrowdClock Properties, CrowdClock reserves the right to: warn you via e-mail (to any e-mail address you have provided to CrowdClock) that you have violated the Terms; delete any of Your Content provided by you or your agent(s) to the CrowdClock Properties; discontinue your registration(s) with any of the CrowdClock Properties, including the Services or any CrowdClock community; notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or pursue any other action which CrowdClock deems to be appropriate.
13.2 No Subsequent Registration. If your registration(s) with or ability to access the CrowdClock Properties, or any other CrowdClock community is discontinued by CrowdClock due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the CrowdClock Properties or any CrowdClock community through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, CrowdClock reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
14. General Provisions.
14.1 Electronic Communications. The communications between you and CrowdClock use electronic means, whether you visit the CrowdClock Properties or send CrowdClock e-mails, or whether CrowdClock posts notices on the CrowdClock Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from CrowdClock in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that CrowdClock provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
14.2 Release. You hereby release the CrowdClock Parties and their successors from claims, demands, any and all losses, damages, rights, 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 other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the CrowdClock Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
14.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without CrowdClock's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. CrowdClock may freely assign the Terms.
14.4 Force Majeure. CrowdClock shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
14.5 Compliance. If you believe that CrowdClock has not adhered to the Terms, please contact CrowdClock by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
14.6 Dispute Resolution.
(a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, CrowdClock may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the CrowdClock Properties.
(b) Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association ("AAA"). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA's Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively "Rules and Procedures").
(c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(d) You and CrowdClock must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR THE COMPANY MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, CrowdClock will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) CrowdClock also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys' fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance , the fees and costs awarded shall be determined by applicable law.
(e) The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 12 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.
Notwithstanding the foregoing, either you or CrowdClock may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party's patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Diego County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Diego County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Diego County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
(f) With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor CrowdClock shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Diego County, California. By using the CrowdClock Properties in any manner, you agree to the above arbitration provision.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
14.7 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
14.8 Notice. Where CrowdClock requires that you provide an e-mail address, you are responsible for providing CrowdClock with your most current e-mail address. In the event that the last e-mail address you provided to CrowdClock is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, CrowdClock's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to CrowdClock at the following address: email@example.com. Such notice shall be deemed given when received by CrowdClock by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
14.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.10 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.11 Export Control. You may not use, export, import, or transfer the Application except as authorized by U.S. law, the laws of the jurisdiction in which you have obtained the Application, and any other applicable laws. By using the Application, you represent and warrant that (i) 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 and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
14.12 Accessing and Download the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"):
(a) You acknowledge and agree that (i) the Terms are concluded between you and CrowdClock only, and not Apple, and (ii) CrowdClock, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between CrowdClock and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of CrowdClock.
(d) You and CrowdClock acknowledge that, as between CrowdClock and Apple, Apple is not responsible for addressing any claims you have or any claims of any third-party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and CrowdClock acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third-party's intellectual property rights, as between CrowdClock and Apple, CrowdClock, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
(f) You and CrowdClock acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
14.13 Consumer Complaints. In accordance with California Civil Code 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
14.14 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Effective Date: April 6, 2013