DORMZI’S TERMS OF SERVICE
LAST UPDATED DATE: January 1, 2018
DORMZI, a California Limited Liability Company (“Dormzi”), operates a service accessible through an mobile application titled “Dormzi”, (the “App”) that provides a venue for university students to request the assistance of other students from their university in performing a variety of tasks or errands (the “Service”).
These Terms of Service (collectively, “Terms of Service”) set forth the terms and conditions under which you may access and use the Service.
BY ACCESSING, REGISTERING WITH, USING THE SERVICES OF DORMZI OR DOWNLOADING THE APP, YOU AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE (WITHOUT MODIFICATION), YOU ARE NOT AUTHORIZED TO ACCESS, REGISTER WITH OR USE THE SERVICES. ALL USERS OF THE SERVICES OFFERED BY DORMZI THROUGH THE DORMZI APPLICATION MUST BE EIGHTEEN (18) YEARS OF AGE OR OLDER TO ACCESS SUCH SERVICES.
PLEASE BE AWARE THAT SECTION 15 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
Dormzi reserves the right to modify or change these Terms of Service at any time without prior notice to you. If Dormzi modifies or changes these Terms of Service, it will also revise the “Effective Date” at the top of the page. Dormzi may also send you an email address you provided, if any. It is your sole responsibility to ensure that you have provided us with the most up-to-date email address.
PLEASE NOTE THAT, NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS OF SERVICE, THE SERVICE IS PROVIDED WITHOUT ANY WARRANTIES AND SUBJECT TO LIMITATIONS ON DORMZI’S LIABILITY.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Terms”.
1.GENERAL USE AND RESTRICTIONS
1.1USE OF SERVICE. You agree not to access and/or use the Services for any purpose that is not expressly permitted by these Terms of Service or is otherwise unlawful.
1.2REGISTRATION. In order to access certain features of Services you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the App (“Account”). If you provide any information to us, you agree to provide only true, accurate, current and complete information, and you will keep such information true, accurate, current and complete. 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 App by minors. You may not share your Account or password with anyone, and you agree to (1) notify Dormzi 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 Dormzi has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Dormzi has the right to suspend or terminate your Account and refuse any and all current or future use of App and Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.
1.3RESTRICTIONS. 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 App or Services (“Dormzi Properties”) or any portion of Dormzi Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Dormzi Properties (including images, text, page layout or form) of Dormzi; (c) you shall not use any metatags or other “hidden text” using Dormzi’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 Dormzi Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not access Dormzi Properties in order to build a similar or competitive website, application or service; (f) except as expressly stated herein, no part of Dormzi Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Dormzi Properties. Any future release, update or other addition to Dormzi Properties shall be subject to the Terms. Dormzi, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of Dormzi Properties terminates the licenses granted by Dormzi pursuant to the Terms.
2.1General. Dormzi allows college and university students (such students, a “Dormer”) to pick and choose jobs, errands and tasks (each, a “Task”), such as dorm room cleaning, food delivery, laundry services, tutoring, and errand running for other students of the same college or university, from a preselected menu of Tasks set forth in the App. If a student agrees, via the App, to perform a designated Task (such, student a “Performer”), the App will provide the Performer with such information as is necessary to enable them to perform the Task, including the address Dormer and requested time of performance. Following the completion of the Task, the Dormer will be charged for such Task and the Performer will be paid in accordance with these Terms of Service.
2.2Task Descriptions. Dormers are required to provide information related to their Tasks before Performers may view and accept such Tasks, such as cleanliness of their room, the amount of laundry to be cleaned, or the subject area of tutoring. Dormers may also be required to provide information related to any materials and equipment that may be necessary for performing a given Task, such as whether the Dormer has cleaning products readily available for use by the Performer. As a Dormer, you represent and warrant that all information and descriptions you provide with respect to any Task (a “Task Description”) is accurate, complete, and current, and acknowledge that Performers have no obligation to perform any job or task that is not within the scope of any Task Description. You further acknowledge and agree that Performers may cancel any Task whose Task Description is materially inaccurate in any way, and that any inaccurate Task Descriptions may result in negative reviews and feedback related to you.
2.3Task Performance. Performers are solely responsible for the performance of any Tasks, and Dormzi does not control, aid, assist, supervise, validate, or inspect any Performers or the results of their work. As a Performer, you represent and warrant that you are suitably qualified and possess all necessary training, education and know-how to perform each Task you are assigned. As a Dormer, you understand and agree that Dormzi does not validate or investigate the suitability, training, or education of any Performer. DORMZI DOES NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE SUITABILITY, TRAINING, EDUCATION, OR PERFORMANCE OF ANY PERFORMER. AS SUCH, YOU ACKNOWLEDGE AND AGREE THAT YOU USE DORMZI AT YOUR OWN RISK.
2.4No-Screenings. Dormzi acts as a venue to connect Dormers and Performers. As a condition of registering for an Account, Dormzi will validate whether a given Performer has a valid college or university email address. However, due to the fact that Dormzi does not control such email addresses, including whether a such email address is associated with a current college or university student, does have any means of verifying whether a particular Performer’s email account has been the subject of a hack, or does not otherwise confirm that the person who performs a given Task is the same Registered User who was assigned a Task, Dormzi does not make any representation or warranty that any particular Performer is a student of the same college or university which you attend. FURTHER, DORMZI DOES NOT PERFORM ANY BACKGROUND CHECKS OR OTHER SCREENINGS RELATED TO ANY PERFORMER. AS SUCH YOU ACKNOWLEDGE AND AGREE THAT YOU USE DORMZI AT YOUR OWN RISK.
2.5Ratings and Reviews. As a venue to connect Dormers and Performers, Dormzi does not supervise, aid, assist or exercise any control over Dormers or Performers. Users may, however, provide ratings and reviews (collectively, “Reviews”) related to one another to aid others in determining whether a particular Dormer or Performer is desirable or suitable for a given Task. You acknowledge that all Reviews are the sole responsibility of the party from whom such Reviews originated. This means that you, and not Dormzi, are entirely responsible for all Reviews that you upload, post, email, transmit or otherwise make available (“Make Available”) through the App and Services, and that you and other Registered Users of the Services, and not Dormzi, are similarly responsible for all Reviews they Make Available through the Services.
3.FEES AND PAYMENT
(a)Generally. Each Task will have certain fees and expenses, if any, associated with it. Once a Task has been completed, Performers will designate (via the Service) the Task as having been completed, which will then prompt the Dormer to verify the completion of such Task. Once a Dormer has verified that a Task has been completed, or if a Dormer fails to verify the completion of such Task or dispute the performance of the Task with 48 hours of the Performer’s notice of completion, we will charge the Dormer’s Account and pay the Performer in accordance with the terms herein. All charges are non-refundable.
(b)As a Dormer. All pre-selected Tasks will have a fee posted in connection with such Tasks. Certain Tasks may have certain expenses associated with those Tasks, such as the cost of cleaning supplies to be obtained by a Performer prior to performance of a Task. Such fees and expenses will be made available for your acceptance prior to requesting performance from any Performer.
(c)As a Performer. As a Performer, our Service will notify you of the fees and, if applicable, expenses to be paid to you in connection with any Task, prior to your acceptance. Following your completion of a Task, you must use the App to designate the Task as having been completed in order to initiate the payment process in accordance with Section 3.1(a).
3.2Taxes. All amounts payable under these Terms of Service are exclusive of all sales, use, value-added, withholding and other taxes and duties. Users will promptly pay, and indemnify Dormzi against, all taxes and duties assessed in connection with (a) any such amounts, (b) these Terms of Service, and (c) performance hereunder by any authority within or outside of the U.S., except for taxes payable on Dormzi’s net income.
3.3Payments. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Dormzi 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 Dormzi with your credit card number and associated payment information, you agree that Dormzi is authorized to immediately invoice your Account for all fees and charges due and payable to Dormzi hereunder and that no additional notice or consent is required. You agree to immediately notify Dormzi of any change in your billing address or the credit card used for payment hereunder. Dormzi reserves the right at any time to change its prices and billing methods, either immediately upon posting on Dormzi Properties or by e-mail delivery to you
3.4Disputes. You must notify us in writing at [email protected] within 48 hours after a Performer has notified us of completion of a Task, if you dispute performance of the Task or such dispute will be deemed waived.
4.1General. In connection with your use of Dormzi Properties, you shall not:
Make Available any Reviews, information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Dormzi Properties (“Content”) that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
Harm minors in any way;
Impersonate any person or entity, including, but not limited to, Dormzi personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
Register for more than one Account or register for an Account on behalf of an individual other than yourself;
Stalk or otherwise harass any other user of our Dormzi Properties; or
Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
4.2Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms):
Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of Dormzi Properties (including your Account), or access to or use of Dormzi Properties;
Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
Use Dormzi Properties or any part thereof for any commercial purpose, including, but not limited to communicating or facilitating any commercial advertisement or solicitation;
Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); or
Market any goods or services for any business purposes
RESPONSIBILITY FOR CONTENT
Types of Content. You acknowledge that all Content, including Dormzi Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Dormzi, are entirely responsible for all Content that you Make Available through Dormzi Properties (“Your Content”), and that you and other Users of Dormzi Properties, and not Dormzi, are similarly responsible for all Content they Make Available through Dormzi Properties (“User Content”).
No Obligation to Pre-Screen Content. You acknowledge that Dormzi has no obligation to pre-screen Content (including, but not limited to, Reviews), although Dormzi reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Dormzi pre-screens, refuses or removes any Content, you acknowledge that Dormzi will do so for Dormzi’s benefit, not yours. Without limiting the foregoing, Dormzi shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
INVESTIGATIONS. Dormzi may, but is not obligated to, monitor or review Dormzi Properties and Content at any time. Without limiting the foregoing, Dormzi shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Dormzi does not generally monitor user activity occurring in connection with Dormzi Properties or Content, if Dormzi becomes aware of any possible violations by you of any provision of the Terms, Dormzi reserves the right to investigate such violations, and Dormzi may, at its sole discretion, immediately terminate your license to use Dormzi Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
INTERACTIONS WITH OTHER USERS
User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Dormzi reserves the right, but has no obligation, to intercede in such disputes. You agree that Dormzi will not be responsible for any liability incurred as the result of such interactions.
Content Provided by Other Users. Dormzi Properties may contain User Content provided by other Users. Dormzi is not responsible for and does not control User Content. Dormzi has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
Violations. If Dormzi becomes aware of any possible violations by you of the Terms, Dormzi reserves the right to investigate such violations. If, as a result of the investigation, Dormzi believes that criminal activity has occurred, Dormzi reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Dormzi is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Dormzi Properties, including Your Content, in Dormzi’s possession in connection with your use of Dormzi Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Dormzi, its Users or the public, and all enforcement or other government officials, as Dormzi in its sole discretion believes to be necessary or appropriate.
Breach. In the event that Dormzi determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Dormzi Properties, Dormzi reserves the right to:
Warn you via e-mail (to any e-mail address you have provided to Dormzi) that you have violated the Terms;
Delete any of Your Content provided by you or your agent(s) to Dormzi Properties;
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 Dormzi deems to be appropriate.
TERM AND TERMINATION
Term. 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 Dormzi Properties, unless terminated earlier in accordance with the Terms.
Prior Use. Notwithstanding the foregoing, if you used Dormzi Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Dormzi Properties (whichever is earlier) and will remain in full force and effect while you use Dormzi Properties, unless earlier terminated in accordance with the Terms.
Termination of Services by Dormzi. If you have materially breached any provision of the Terms, if Dormzi is required to do so by law (e.g., where the provision of the the App, or the Services is, or becomes, unlawful), or if Dormzi otherwise determines such termination or suspension is appropriate (in Dormzi’s sole discretion) Dormzi has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Dormzi’s sole discretion and that Dormzi shall not be liable to you or any third party for any termination of your Account.
Termination of Services by You. If you want to terminate the Services provided by Dormzi, you may do so by (a) notifying Dormzi at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Dormzi's address set forth below.
Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Dormzi 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.
No Subsequent Registration. If your registration(s) with or ability to access Dormzi Properties, then you agree that you shall not attempt to re-register with or access Dormzi Properties or any Dormzi community through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Dormzi 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.
Dormzi Properties. Except with respect to Your Content and User Content, you agree that Dormzi and its suppliers own all rights, title and interest in Dormzi Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Dormzi Properties.
Other Content. 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 Dormzi Properties.
Your Content. Dormzi does not claim ownership of Your Content. However, when you post or publish Your Content on or in Dormzi Properties, you 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 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 Content.
License to Your Content. Subject to any applicable account settings that you select, you grant Dormzi 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 Dormzi Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Dormzi Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Dormzi, are responsible for all of Your Content that you Make Available on or in Dormzi Properties.
Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Dormzi through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Dormzi 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 Dormzi 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 Dormzi Properties
11.INDEMNIFICATION. You hereby agree to indemnify and hold harmless Dormzi and its affiliates, officers, members, managers, directors, employees, equity holders, information providers, suppliers, licensors and licensees, and their respective successors and assigns (“Covered Persons”) from and against any and all losses, damages, liabilities, deficiencies, judgments, interest, awards, fines, costs or expenses of whatever kind, including, without limitation, amounts paid in settlement and reasonable attorneys’ fees incurred by any Covered Person in connection with any claim, action, arbitration, litigation, subpoena or investigation of any nature (whether at law or in equity) arising out or caused by (a) your access and/or use of the Dormzi Application or Services, (b) any claim that Your Content misappropriates, infringes or otherwise violates any third party's rights, including privacy or intellectual property right of any third party, (c) any breach, or alleged breach, of any of these Terms by you, (d) your interaction with any other user of the Services, or (e) any bodily injury, including death, or property damage caused by you in connection with the Services.
12.DISCLAIMER OF WARRANTIES. You expressly acknowledge and agree that your use of the Service is at your sole risk. The Service is provided on an "AS IS", "WITH ALL FAULTS", and "AS AVAILABLE" basis. Dormzi makes no representations or warranties relating to the Service including, without limitation, representations or warranties that (a) the Service shall meet your requirements, (b) the operation of the Service will be uninterrupted or error free, (c) the Service will be secure; or (d) any defects in the Service will be corrected. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS" AND DORMZI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT DORMZI KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DORMZI MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
13.LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY COVERED PERSON BE LIABLE FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM ANY USER’S USE OF OR PARTICIPATION IN THE SERVICES, OR (B) INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THESE TERMS OF SERVICE AND/OR THE SERVICE, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF SUCH COVERED PERSON IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE A REASONABLY FORESEEABLE CONSEQUENCE OF A BREACH OF THIS AGREEMENT OR A TORT THAT FALLS WITHIN THE SCOPE OF THIS AGREEMENT. IN NO EVENT SHALL ANY COVERED PERSON’S TOTAL LIABILITY TO YOU FOR ANY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS OF SERVICE OR THE SERVICE, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EXCEED THE GREATER OF (A) TEN U.S. DOLLARS ($10) OR (B) THE AMOUNT YOU PAID TO US, IF ANY, DURING THE THREE (3) MONTH PERIOD IMMEDIATELY BEFORE THE APPLICABLE CLAIMS AROSE. THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.MODIFICATIONS TO THE SERVICE. Dormzi may modify the use of all or any portion of the Services at any time for any reason (or for no reason) and without notice or liability. Dormzi suspend, discontinue and/or restrict the use of all or any portion of the Services at any time for any reason (or for no reason) without liability upon thirty (30) days’ notice by emailing registered users.
DISPUTE RESOLUTION. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Dormzi and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Service, or to any aspect of your relationship with Dormzi, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Dormzi 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Terms of Service or any prior version of this Terms of Service.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to us at [include contact info here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims 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 claims 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. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Dormzi will pay them for you. In addition, Dormzi will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Dormzi. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms of Service (including the Arbitration Agreement). 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 has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND DORMZI 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 Dormzi are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Terms of Service as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the State or Federal Courts located in San Mateo County, California. All other claims shall be arbitrated.
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 the following address: __________________________________________, within 30 days after first becoming subject to this Arbitration Agreement [we recommend including an email option as well]. Your notice must include your name and address, your Dormzi username (if any), the email address you used to set up your Dormzi 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 this 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.
Severability. Except as provided in subsection 15.5, 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.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Dormzi.
Modification. Notwithstanding any provision in this Terms of Service to the contrary, we agree that if Dormzi makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Dormzi at the following address: ________________________.
Electronic Communications. The communications between you and Dormzi use electronic means, whether you visit Dormzi Properties or send Dormzi e-mails, or whether Dormzi posts notices on Dormzi Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Dormzi in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Dormzi 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.
Release. You hereby release Covered Persons 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 your use of Dormzi Properties, including but not limited to, 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 Dormzi 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 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 a Covered Person or for such person’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the any Services provided hereunder.
Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Dormzi’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Dormzi 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.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Dormzi Properties, please contact us at: ____________. 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.
Limitation Period. YOU AND DORMZI AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, DORMZI PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Dormzi 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 San Mateo County, California.
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 THESE TERMS.
Notice. Where Dormzi requires that you provide an e-mail address, you are responsible for providing Dormzi with your most current e-mail address. In the event that the last e-mail address you provided to Dormzi is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Dormzi’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Dormzi at the following address: ______. Such notice shall be deemed given when received by Dormzi by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
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.
Severability. If any portion of this 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.
Export Control. You may not use, export, import, or transfer Dormzi Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Dormzi Properties, and any other applicable laws. In particular, but without limitation, Dormzi Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Dormzi Properties, 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. You also will not use Dormzi Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Dormzi are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Dormzi products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
App Store Terms. 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 (“App Store”). You acknowledge that the Terms are between you and Dormzi and not with the App Store. Dormzi, not the App Store, is solely responsible for Dormzi Properties, 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 Dormzi Properties, including the Application. 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 Dormzi Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
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.
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.
17.HOW TO CONTACT US. If you have any questions or comments about these Terms of Service or this Site, please contact us at: [email protected]
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