Last revised on: 04/01/2023
Your use of the Services may be subject to any additional terms, conditions and policies that we separately post on the Services and any agreements that you have separately executed with Firstparty (“Supplemental Terms”) which are incorporated by reference into these Terms, (together, the Agreement”). To the extent there is any conflict between these Terms and any Supplemental Terms, the Supplemental Terms will control with respect to the Services or feature to which the Supplemental Terms relate. In the event you are an employee or agent of one of our enterprise customers, your use of the Platform and App is not subject to the terms and conditions of this agreement, rather, your use of the Platform and App is subject to the customer agreement between Firstparty and the enterprise customer you are affiliated with.
IMPORTANT INFORMATION ABOUT ARBITRATION, CONSENTS AND UPDATES TO THE AGREEMENT
PLEASE BE AWARE THAT SECTION 14 OF THESE TERMS CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND FIRSTPARTY HAVE AGAINST EACH OTHER WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THE AGREEMENT. SECTION 14 CONTAINS, AMONG OTHER THINGS, AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND FIRSTPARTY BE RESOLVED BY BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE OF THE AGREEMENT: (I) YOU AND FIRSTPARTY WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (II) EACH OF US IS WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE BE AWARE THAT SECTION 6 (FIRSTPARTY COMMUNICATIONS) OF THE AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
1. USE OF THE SERVICES.
1.1 The Services; Third-Party Accounts. Firstparty offers users the opportunity to engage with a virtual assistant. Users can connect the Services with Third-Party Accounts (as defined below, including without limitation, browsing and email histories). Our digital assistants are available to respond to queries by searching the internet, your browsing history, if applicable, or other Third-Party Accounts. You may have the opportunity to invite friends to join the Services and you can create and/or join a group agenda with other users of the Services.
IF YOU JOIN A GROUP AGENDA, YOU ACKNOWLEDGE AND AGREE THAT YOU AND OTHER MEMBERS OF THE GROUP MAY HAVE ACCESS TO INFORMATION CONTAINED WITHIN, AND MAY BE ABLE TO QUERY ANY LINKED THIRD-PARTY ACCOUNTS, APPLICATIONS, OR ANY OTHER INFORMATION YOU ELECT TO LINK AND SHARE WITH THAT SPECIFIC GROUP AGENDA. YOU UNDERSTAND THAT IF YOU MAKE CONTENT (INCLUDING CONTENT FROM A THIRD-PARTY ACCOUNT OR APPLICATION) AVAILABLE TO OTHER USERS BY LINKING SUCH THIRD-PARTY ACCOUNT OR APPLICATION, AND/OR BY SHARING INFORMATION AND CONTENT IN A GROUP AGENDA, OTHER USERS OF THAT GROUP AGENDA MAY BE ABLE TO VIEW THE INFORMATION AND CONTENT YOU’VE MADE AVAILABLE. ONCE YOUR INFORMATION OR CONTENT HAS BEEN SHARED IN A GROUP AGENDA, FIRSTPARTY CANNOT CONTROL WHAT ACCOUNTS OR APPLICATIONS WILL BE QUERIED BY USERS IN A PARTICULAR GROUP AGENDA OR HOW OTHER USERS WILL USE SUCH CONTENT. WE ARE NOT RESPONSIBLE FOR ANY USE OR DISCLOSURE OF YOUR INFORMATION OR CONTENT BY OTHER USERS OF THE SERVICES. IF YOU DECIDE YOU DO NOT WISH TO CONTINUE TO SHARE INFORMATION AND CONTENT FROM CERTAIN THIRD-PARTY ACCOUNTS IN A PARTICULAR GROUP AGENDA, YOU MAY UN-LINK SUCH THIRD-PARTY ACCOUNTS FROM THE GROUP AGENDA ON THE SERVICES. YOU MAY DO THIS BY DELETING THE CONNECTED THIRD-PARTY ACCOUNT FROM YOUR ORGANIZATION SETTINGS.
1.2 Rights to use the Services. The Services, and any parts thereof, including the Platform, are protected by copyright laws throughout the world. Subject to the Agreement, Firstparty grants you the right to access and use the features and functionality of the Site and Platform. Unless otherwise specified by Firstparty in a separate license, your right to use any part of the Services is subject to the Agreement. Firstparty, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any part of the Services terminates the licenses granted by Firstparty pursuant to the Agreement.
1.3 Application License. For any App made available as part of the Services, Firstparty grants you, subject to your compliance with the Agreement, a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal use. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an“App Store Sourced Application”), you will only use the App Store Sourced Application: (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system); and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any App accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.
1.4 Downloadable Plug-in. We may provide you with a downloadable plug-in (“Plug-in”) to install on your personal browser, or the browser of the entity that you represent. Subject to your compliance with the Agreement, we hereby grant you a non-exclusive, non-transferable, non-sublicensable, revocable license to use and display the Plug-in on your website for your own personal or internal business purposes. You may not use the Plug-in for any other purpose without our prior written consent, and nothing in the Agreement shall be deemed to grant you any right, title or interest in the Plug-in.
1.5 Updates. You understand that the Services are evolving. You acknowledge and agree that Firstparty may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services. Any future release, update or other addition to the Services shall be subject to the Agreement.
1.6 Certain Restrictions. By accessing and using the Services you agree that you will not, and will not permit any third party to: (a) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services or any portion of the Services, including the Platform, or any content displayed thereon; (b) use any metatags or other “hidden text” using Firstparty’s name or trademarks; (c) frame or utilize framing techniques to enclose any trademark, logo, or other Firstparty content (including images, text, page layout or form) of Firstparty; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) access or use the Services in order to build a similar or competitive website, product, or service; and (f) 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 or components of the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from web pages in the Services 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). All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
1.7 No Support or Maintenance; Necessary Equipment. You acknowledge and agree that Firstparty will have no obligation to provide you with any support or maintenance in connection with the Services (unless you are an enterprise user associated with an enterprise customer that has contracted with us to receive such support or maintenance). As between us and you, you are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
1.8 Ownership. Excluding any User Content that you may provide (defined in Section 4.1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Firstparty or Firstparty’s suppliers. Neither the Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1. Firstparty and its suppliers reserve all rights not granted in the Agreement. There are no implied licenses granted under the Agreement.
2. REGISTRATION AND ACCOUNTS
2.1 Registration and Account Creation. In order to access and use certain features of the Services, you may need to register or create an account on the Services (“Account”) and provide certain information about yourself as prompted by the account registration form, including (but not limited to) your name, an email address and password. You agree to provide information required for your use of the Services that is, and to update such information so it remains true, accurate, current and complete. Firstparty reserves the rights to establish eligibility criteria to use the Services, and in some cases, at our sole discretion, impose limitations or restrictions on certain Accounts including, but not limited to, deletion of Accounts.
2.2 Social Networking Site. You may be able to access the Services through a social network service (“SNS”) as part of the functionality of the Services. You may link your Account with a SNS, by allowing Firstparty to access your SNS, as is permitted under the applicable terms and conditions that govern your use of each SNS. You represent that you are entitled to grant Firstparty access to your SNS account (including, for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable SNS. By granting Firstparty access to any SNS accounts, you understand that Firstparty may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Services that you have provided to and stored in your SNS account (“SNS Content”) so that it is available on and through the Services. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be User Content (as defined below). Depending on the SNS account you choose and subject to the privacy settings that you have set in such SNS account, personally identifiable information that you post to your SNS account may be available on and through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND FIRSTPARTY 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. Firstparty is not responsible for any SNS Content, including but not limited to, accuracy or legality of, or infringement by, the SNS Content.
2.3 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Firstparty of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. You agree not to create an Account using a false identity or false information, or on behalf of someone other than yourself. 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 Services by minors. Firstparty cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3. PAYMENT. Many of our Services are currently provided free of charge to users, however Firstparty retains the right to implement a fee structure for any of these Services in the future. Firstparty will provide notice if it begins to charge fees for any of these Services. If you are using the Services by virtue of your affiliate with an enterprise customer, please review the agreement between Firstparty and the enterprise customer you are associated with for more information on the fees associated with your account.
4. USER CONTENT
4.1 User Content. “User Content” means any and all information and content that a User submits to, or uses with, the Services (e.g., information you include in your profile, content you upload into or create through use of a feature on the Platform, the content of any messages you create using in-app messaging features within the Services, and any information you surface from Third-Party Accounts). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate Section 5. You further represent that, you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display your User Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in your User Content. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Firstparty. Because you are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates Section5. Firstparty is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
4.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Firstparty an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in connection with the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
4.3 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate Section 7 or any other provision of the Agreement or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 12, and/or reporting you to law enforcement authorities.
4.4 Feedback. If you provide Firstparty with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Firstparty all rights in such Feedback and agree that Firstparty shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Firstparty will treat any Feedback you provide to Firstparty as non-confidential and non-proprietary. You agree that you will not submit to Firstparty any information or ideas that you consider to be confidential or proprietary.
5. ACCEPTABLE USE POLICY. You agree not to: (a) use the Services to upload, transmit, display, or distribute any User Content that (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party, or is otherwise objectionable; (b) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (c) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (d) abuse other users’ personal information that you receive through the Services, such as to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (e) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (f) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (g) interfere with any other user’s use and enjoyment of the Services; (h) impersonate any person or entity, including any employee or representative of Firstparty; (i) record or screen capture Content that is made available to you on the Services; or (j) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site 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, subject to the parameters set forth in our robots.txt file).
6. FIRSTPARTY COMMUNICATIONS.
6.1 Generally. You may have the opportunity to provide us with your phone number or e-mail address. By providing your phone number or email address to us, you consent to receive SMS/text messages, and email communications from Firstparty. Communications from us may include communications about your use of the Services.
6.2 Promotional Email Communications. If you opt-in to receive marketing or promotional email communications from us, you will have the ability to opt out of receiving such communications by following the unsubscribe instructions in the communication itself. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL EMAILS AS A CONDITION OF USING THE SERVICES. CONSENT TO THESE PROMOTIONAL MESSAGES IS NOT REQUIRED TO ACCESS THE SITE OR SERVICES.
6.3 Electronic Communications. The communications between you and Firstparty use electronic means, whether you use the Services or send us emails, or whether Firstparty posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Firstparty in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Firstparty provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
7. INDEMNIFICATION.You agree to indemnify and hold Firstparty (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Services, (b) your User Content, (c) your violation of the Agreement, or (d) your violation of applicable laws or regulations. Firstparty reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Firstparty. Firstparty will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
8. THIRD-PARTY LINKS AND APPLICATIONS; OTHER USERS
8.1 Third-Party Links and Applications. The Services may contain links to third-party websites and services, and applications for third parties (collectively, “Third-Party Links and Applications”). Such Third-Party Links and Applications are not under the control of Firstparty, and Firstparty is not responsible for any Third-Party Links and Applications. Firstparty provides access to these Third-Party Links and Applications only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links and Applications. You use all Third-Party Links and Applications at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links and Applications, the applicable third-party’s terms and policies apply, including the third-party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links and Applications.
8.2 Other Users. Each user of the Services is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other users are solely between you and such users. You agree that Firstparty 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 user of the Services, we are under no obligation to become involved. Provided, however, we reserve the right to intercede in such disputes at our sole discretion.
9. Release. You hereby release and forever discharge Firstparty (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including interactions with any other users of the Services or any Third-Party Links and Applications). If you are a California resident, you hereby waive California Civil Code 1542 in connection with the foregoing, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by Firstparty or for fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.
10.1 Generally. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND NO GUARANTEES REGARDING OUTCOMES OR PERFORMANCE. WE HAVE NO LIABILITY FOR RESULTS IN CONNECTION WITH THE SERVICES OR THE ACTIONS OR OMISSIONS OF ANY USER. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT WHETHER PROVIDED BY FIRSTPARTY OR ANOTHER USER OF THE SERVICES. FIRSTPARTY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
10.2 Special Content Disclaimers.
(a) YOU UNDERSTAND THAT IF YOU MAKE CONTENT (INCLUDING CONTENT FROM THIRD-PARTY ACCOUNTS) AVAILABLE TO OTHER USERS BY SHARING INFORMATION AND CONTENT, INCLUDING IN A GROUP AGENDA OR LINKING A THIRD-PARTY ACCOUNT OR APPLICATION TO A GROUP AGENDA, THEN OTHER USERS OF THE SERVICES MAY BE ABLE TO QUERY AND VIEW THE INFORMATION AND CONTENT YOU’VE MADE AVAILABLE. FIRSTPARTY DOES NOT CONTROL HOW SUCH CONTENT IS USED BY OTHER USERS OF THE SERVICES.
(b) IF YOU PARTICIPATE IN A GROUP AGENDA OR OTHER PUBLIC-FACING FEATURE OF THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT FIRSTPARTY DOES NOT CONTROL (I) WHAT THIRD-PARTY ACCOUNTS OR APPLICATIONS OTHER USERS LINK TO THE SERVICES, OR (II) THE CONTENT SHARED OR UPLOADED TO THE SERVICES BY OTHER USERS, INCLUDING INFORMATION QUERIED BY CERTAIN USERS OF THE SERVICES. YOU MAY HAVE THE OPPORTUNITY TO QUERY OTHER USERS’ LINKED ACCOUNTS AND APPLICATIONS OR VIEW INFORMATION OTHERWISE MADE AVAILABLE IN A GROUP AGENDA. FIRSTPARTY IS NOT LIABLE OR RESPONSIBLE FOR ANY CONTENT SURFACED OR MADE ACCESSIBLE TO YOU THROUGH OR IN CONNECTION WITH THE SERVICES. FIRSTPARTY MAY, BUT IS NOT OBLIGATED TO, MONITOR USER CONTENT PURSUANT TO SECTION 4.3 HEREIN.
11. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FIRSTPARTY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THE AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR ANY PART THEREOF, EVEN IF FIRSTPARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO FIFTY ($50) DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THE AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FIRSTPARTY AND YOU.
12. TERM AND TERMINATION. Subject to this Section, the Agreement will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of the Agreement. Upon termination of your rights under the Agreement, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Firstparty will not have any liability whatsoever to you for any termination of your rights under the Agreement, including for termination of your Account or deletion of your User Content. Even after your rights under the Agreement are terminated, the following provisions of the Agreement will remain in effect: Sections 1.6, 1.7, 1.8, 2.3, and 3 - 15
13. COPYRIGHT POLICY. Firstparty respects the intellectual property of others and asks that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Firstparty is: [CW3]
Designated Agent: Firstparty Admin
Address of Agent: 4400 N Scottsdale Road, Ste 9 #701, Scottsdale, Arizona 85251
14. ARBITRATION CLAUSE AND CLASS ACTION WAIVER . Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires that you and Firstparty arbitrate disputes against one another.
Dispute Resolution: PLEASE BE AWARE THAT THIS SECTION 14 CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND FIRSTPARTY HAVE AGAINST EACH OTHER WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 14INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND FIRSTPARTY BE RESOLVED BY BINDING AND FINAL ARBITRATION. THIS SECTION 14 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS SECTION 14CAREFULLY.
14.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Firstparty agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services, or the Terms, including claims and disputes that arose between us before the effective date of these Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Firstparty may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Firstparty may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms.
14.2 Informal Dispute Resolution. There may be instances when a Dispute arises between you and Firstparty. If that occurs, Firstparty is committed to working with you to reach a reasonable resolution. You and Firstparty agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Firstparty therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
14.3 The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing. Notice to Firstparty that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org or regular mail to our offices located at Firstparty Labs Inc., 4400 N Scottsdale Road, Ste 9 #701, Scottsdale, Arizona 85251. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
14.4 Waiver of Jury Trial. YOU AND FIRSTPARTY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Firstparty are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5 Waiver of Class and Other Non-Individualized Relief. YOU AND FIRSTPARTY AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 14.10(BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection 14.10 (Batch Arbitration) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Firstparty agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Scottsdale, Arizona[CW4]. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Firstparty from participating in a class-wide settlement of claims.
14.6 Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Firstparty agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS rules.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and otherwise agree, or the Batch Arbitration process discussed in subsection 14.10 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable JAMS rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.
You and Firstparty agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
14.7 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Arizona[CW5]and will be selected by the parties from the JAMS roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then JAMS will appoint the arbitrator in accordance with the applicable JAMS rules, provided that if the Batch Arbitration process under subsection 14.10 (Batch Arbitration) is triggered, JAMS will appoint the arbitrator for each batch.
14.8 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. 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 award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
14.9 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Firstparty need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
14.10 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Firstparty agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Firstparty by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Firstparty.
You and Firstparty agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
14.11 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Firstparty Labs Inc., 4400 N Scottsdale Road, Ste 9 #701, Scottsdale, Arizona 85251, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Firstparty account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms of Service will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.12 Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Firstparty as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
14.13 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Firstparty makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Firstparty at: Firstparty Labs Inc., 4400 N Scottsdale Road, Ste 9 #701, Scottsdale, Arizona 85251, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, any products sold or distributed through the Services or the Agreement, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Firstparty will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
15.1 Electronic Communications. The communications between you and Firstparty may take place via electronic means, whether you visit the Services or send Firstparty e-mails, or whether Firstparty posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Firstparty in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Firstparty 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, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
15.2 App Stores.You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Firstparty and not with the App Store. Firstparty, not the App Store, is solely responsible for the Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it. You acknowledge that neither Apple nor Google (each, an “App Provider”) has any obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Firstparty and the App Provider, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Firstparty. You and Firstparty acknowledge that, as between Firstparty and the App Provider, the App Provider 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. You and Firstparty 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 Firstparty and an App Provider, First Party, not the App Provider, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
15.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Firstparty’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.4 Force Majeure. Firstparty 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.
15.5 Governing Law. THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE ARIZONA[CW6], 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 THE AGREEMENT. To the extent the parties are permitted under the Agreement to initiate litigation in a court, both you and Firstparty agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in in Scottsdale, Arizona[CW7].
15.6 Notice. Where Firstparty requires that you provide an e-mail address, you are responsible for providing Firstparty with your most current e-mail address. In the event that the last e-mail address you provided to Firstparty is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Firstparty’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Firstparty at the following address: 4400 N Scottsdale Road, Ste 9 #701, Scottsdale, Arizona 85251. [CW8]Such notice shall be deemed given when received by Firstparty by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.7 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.8 Severability. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
15.9 International Users. The Site and other parts of the Services can be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Firstparty intends to announce such services or content in your country. The Services are controlled and offered by Firstparty from its facilities in the United States of America. Firstparty makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
15.10 Export Control. The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Firstparty, or any products utilizing such data, in violation of the United States export laws or regulations.
15.11 Copyright/Trademark Information. Copyright © 2023, Firstparty Labs, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks. All goodwill generated from the use of any Firstparty Marks will inure to Firstparty’s benefit.
15.12 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at the contact information below. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. In addition, 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.
15.13 Entire Agreement. The Agreement is 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.
15.14 Contact Information:
Firstparty Labs, Inc.
4400 N Scottsdale Road,
Ste 9 #701,
Scottsdale, Arizona 85251