Effective Date: December,2022
BYACCESSING OR USING THE PLATFORM YOU ARE INDICATING THAT YOU HAVE READ ANDUNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BYTHE TERMS.
If you are accepting or agreeing to the Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to act on behalf of and bind that entity to the Terms.
IFYOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM ORSERVICES.
Table of Contents
1. ABOUT THE TERMS
2. IMPORTANT INFORMATIONABOUT THE PLATFORM
3. FEES AND PAYMENT TERMS
4. USER CONDUCTGUIDELINES
5. INTELLECTUAL PROPERTYOWNERSHIP
6. NO ENDORSEMENT
7. THIRD PARTY TERMS
8. WARRANTIES, DISCLAIMERS,LIMITATION OF LIABILITY & INDEMNIFICATION
9. GOVERNING LAW &DISPUTE RESOLUTION
· “Platform” refers, collectively, to any and all Website, Services and other technology through which DECKTOPUS provides the Services.
· “Platform Content” refers to any and all videos, fonts, text, photos, designs, graphics, icons, illustrations, ready made presentations, information and other content included, provided or made available on or through the Platform, including all User Content except YourContent.
· “Services” refers to any services or products provided by DECKTOPUS and its service providers, and any and all related services and promotions.
· “Users” means any and all persons that access or use the Platform. References to “access” and/or “use” of the Platform (and any variations thereof) include the acts of accessing or browsing the Website and accessing or using theServices.
· “Website” refers to any website owned or operated by DECKTOPUS (including the websites currently located at www.decktopus.comand app.decktopus.com), through which access to theServices is available. References to the“Website” include any and all features, functionality, tools and content available on or through each such website.
· “DECKTOPUS,”“we,” or “us” refer to Decktopus Inc and our officers, directors, employees, contractors and agents. To the extent applicable, they also refer to our affiliates, service providers and licensors, and their respective officers, directors, employees, contractors and agents.
· IMPORTANTINFORMATION ABOUT THE FUNCTIONAL LIMITATIONS OF THE PLATFORM AND/OR THESERVICES;
· YOUROBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
· LIMITATIONSOF OUR LIABILITY TO YOU; AND
· AREQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDINGMONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHERTHAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOURACCESS TO AND USE OF THE PLATFORM AND SERVICES IS CONDITIONED ON YOURACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
DECKTOPUS reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Platform after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Platform.
No other modification, amendment, supplement of or to the Terms will be binding onDECKTOPUS unless it is in writing and signed by an authorized representative ofDECKTOPUS.
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
Subject to your compliance with the Terms, DECKTOPUS grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Platform and Services. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Platform as provided by DECKTOPUS, in the manner permitted by the Terms.
In order to use the Services, you must:
· have internet access (e.g., WiFi or 3G /4G with a data plan); and
· provide and maintain complete, accurate and up-to-date account information, including contact information for your emergency contacts.
If any of the above requirements are not met, you will not be able to use some or all of the Services.
In addition to the set-up and operating requirements, there are certain other circumstances that may limit the availability or effectiveness of the Services.
· ServiceArea- The Platform is currently configured for use in the United States only, and for use outside of the United States.
· ServiceInterruptions- The Services can be interrupted for any reason that disrupts internet accessor GPS capabilities, including in the event of:
o electrical power outages
o natural disasters
o electronic interference
o an outage affecting the data transport service
o failure of originating or terminating access lines
o network congestion and/or reduced routing speed DECKTOPUS’s network or another network(for example, due to spikes in call volume in the wake of local or national disasters), causing failed calls, busy signals or unexpected answering wait times (which may be longer than emergency calls placed via traditional telephone networks)
o compatibility issues
o equipment failures relating to your equipment or DECKTOPUS’s equipment, including, hardware or software failures or misconfiguration affecting DECKTOPUS, its offices, data centers, and/or any of its service providers
YOUAFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
· DECKTOPUSDOES NOT AND CANNOT GUARANTEE THAT THE PLATFORM WILL BE CONTINUOUS ORERROR-FREE. FOR EXAMPLE, THE PLATFORM WILL NOT BE AVAILABLE OUTSIDE OF THESERVICE AREA OR UNDER CIRCUMSTANCES SET FORTH ABOVE.
· IFYOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR PLATFORMIS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUESOR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE PLATFORM.
· YOUARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE PLATFORM AND YOUR CONTENT. ABUSE OF THE SERVICES MAY SUBJECT YOU TOCIVIL AND CRIMINAL FINES AND PENALTIES.
DECKTOPUS reserves the right, in its sole discretion, to modify or discontinue offering the Platform and/or Services, in whole or in part, including any Website, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of the User Content at our sole discretion at any time without prior notice to you.
You agree that DECKTOPUS has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
GDPR Compliance. Any information containing personal data shall be handled in accordance with all applicable privacy laws and regulations, including without limitation the GDPR and equivalent laws and regulations. If for the performance of the Agreement it is necessary to exchange personal data, the relevant Parties shall determine their respective positions towards each other and the subsequent consequences and responsibilities according to the GDPR as soon as possible after theEffective Date and where required implement these in a separate written agreement.
You will be charged in full for theServices you purchase. If your order includes additional add-on packages, you will be charged in full for each add-on. By placing an order, you hereby agree to pay the charges associated with the order in accordance with these Terms.
YOUARE RESPONSIBLE FOR PROVIDING DECKTOPUS WITH VALID CREDIT CARD OR PAYMENTACCOUNT DETAILS AND FOR THE TIMELY PAYMENT OF ALL FEES. Please note that the payment information, including name and contact information, that you submit when you register maybe used and shared with our payment processing services provider and otherwise used in accordance with our Privacy Notice.
We may contact you via email regarding your account, for example, in connection with a problem with your credit card or payment account.
You are solely responsible for any fees or charges incurred to access the Platform through an internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider. You agree that DECKTOPUS is not liable in anyway for any third party charges.
The terms and conditions governing refunds for our subscription services, which specify that refunds are not available for both monthly and annual subscriptions.
Refers to subscription plans where customers are billed on a monthly basis for access to our Decktopus services.
Refers to subscription plans where customers are billed once a year for access to Decktopus services, often at a discounted rate compared to monthly subscriptions.
Anytime you access or use the Platform, you are required to comply with our User conduct guidelines, as set forth below.
You are not authorized to access or use the Platform:
· to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions
· to collect, store or use any information from or about another User, other than to provide aid to such User or as otherwise authorized and intended by such User;
· to “stalk” or harass any other User
· to distribute unsolicited commercial or bulk electronic communications (or, “spam”),chain letters or “pyramid” schemes
· for political campaigning, recruiting votes or soliciting donations or other support for legislative or other initiatives
· to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise
· if you are not able to form legally binding contracts (for example, if you are under 18)
· if you are a person barred from receiving services under the laws of the UnitedStates or other applicable jurisdiction
· for any other purposes that are not expressly permitted by the Terms.
Further, you may not:
· access, copy, distribute, share, publish, use or store, or prepare derivative works from any Platform Content that belongs to DECKTOPUS, another User or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
· share your user ID/username or transfer your account to another party without our consent;
· circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Platform if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Platform;
· access, search, collect information from, or otherwise interact with the Platform by“scraping,” “crawling” or “spidering” the Platform, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided byDECKTOPUS, unless you have been specifically authorized to do so in a separate agreement with DECKTOPUS;
· use, display, mirror or frame the Platform, or any feature, functionality, tool or content of the Platform, DECKTOPUS’s name, any DECKTOPUS trademark, logo or other proprietary information, without DECKTOPUS’s express written consent;
· interfere with, disrupt, damage or compromise the Platform or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Platform or otherwise imposing an unreasonable or disproportionately large load on the Platform;
· access, tamper with or use non-public areas of any of the Platform, DECKTOPUS’s computer systems, or the technical delivery systems of DECKTOPUS’s providers;
· probe, scan, or test the vulnerability of any system or network of DECKTOPUS or its providers, or breach or circumvent any security or authentication measures of such system or network;
· avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by DECKTOPUS or any of DECKTOPUS’s providers or any other third party to protect the Platform;
· forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Platform to send altered, deceptive or false source-identifying information;
· attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Platform;
· export or re-export the Platform, except in compliance with the export control law sand regulations of any relevant jurisdictions;
· otherwise abuse the Platform or breach the Terms; or
· attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
If you feel that another User has violated the Terms, abused the Platform or otherwise acted inappropriately, you may report the User to DECKTOPUS at email@example.com.DECKTOPUS reserves the right, but assumes no obligation, to investigate and take appropriate action in response to such reports. Regardless of its action or inaction, in no event will DECKTOPUS be liable for the acts or omissions of any User or any third party.
If you are a California resident, you may also report complaints to the ComplaintAssistance Unit of the Division of Consumer Services of the CaliforniaDepartment of Consumer Affairs by contacting them in writing at 400 R Street,Sacramento, CA 95814, or by telephone at (800) 952-5210. See the “California Residents” subsection below for the full information required under California Civil Code §1789.3.
DECKTOPUS reserves the right to investigate and prosecute violations of any and all reports, complaints and claims, or otherwise suspected misconduct or violations of the law to the fullest extent of the law.
Without limiting the foregoing, you acknowledge that DECKTOPUS has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform or Services by any User, to access, review, preserve and disclose any User Content, or to remove or disable access to any User Content, if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against DECKTOPUS, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents offraud, security and technical issues, (v) to protect the rights, property or safety of DECKTOPUS, its Users or members of the public, and (vi) for the purpose of operating and improving the Platform and Services (including for customer support purposes).
You agree to cooperate with and assist DECKTOPUS or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
When an issue arises, we reserve the right to consider such User’s performance history and the specific circumstances in applying our policies, and to determine how strictly to enforce such policies in an effort to achieve a fair outcome for all parties involved.
ThePlatform and Services, including any Website, and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Platform and Services, and all intellectual property rights therein are the exclusive property of DECKTOPUS and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform or Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with DECKTOPUS (the “DECKTOPUS Marks”) are the property of DECKTOPUS, and that you are not permitted to use the DECKTOPUS Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform or Services in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of DECKTOPUS or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at DECKTOPUS’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by DECKTOPUS or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at firstname.lastname@example.org. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of DECKTOPUS. Without limiting the foregoing, you acknowledge that your Feedback maybe disseminated or used by DECKTOPUS or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign toDECKTOPUS all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect DECKTOPUS’s rights in such improvements, enhancements and modifications.
Users are required by the Terms to provide accurate information and, although DECKTOPUS may conduct certain limited checks and/or institute certain processes designed to help verify information provided by Users, we do not guarantee the completeness or accuracy of any information provided by any User, including theUser’s purported identity, credentials or background.
Any indication that a User has been “verified” (or similar language) only means that the User has completed a relevant verification process. It is not an endorsement, certification or guarantee by DECKTOPUS about the User, including of the User’s identity, credentials or background. Any such description is intended only help you to evaluate and you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform.
We recommend that you exercise due diligence when deciding to communicate or interact with another User, and we will not be responsible or liable for any damage or harm resulting from your interactions with other Users.
The Platform may also provide links to third-party websites, resources or services. You acknowledge and agree that DECKTOPUS is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by DECKTOPUS of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
You represent and warrant to DECKTOPUS that:
(i) Creating and sharing Content on the Platform are solely carried out by and between the Users and the Decktopus is only providing a platform to the User in respect thereof. Users agree that the Decktopus is not under the obligation to have knowledge of or to undertake and guarantee any subject such as the accuracy of the Content shared via thePlatform, its quality, originality, accuracy and completeness of the written and/or visual statements, and that the Decktopus is not a party of the Content creating and sharing activities in any way. The User shall have liability of all the work and transaction performed within this scope and shall not raise any defense and/or objection alleging that the work and transaction is not done by itself and/or refrain from fulfilling its obligations based on its defense and/or objection. All claims relevant to the Content shall be directed to theUser. Decktopus shall provide channels deemed necessary via the Platform for the transmission of the User requests and problems. Information and communication sources and channels shall not be interpreted as an undertaking for resolving the problems between the Users.
(ii) Decktopus may reject publishingContent on the Platform without any reason. Approval of Decktopus for publishing Content on the Platform shall not be interpreted as the lift off ofCompany’s non-liability with respect to the Content. Additional rules, terms and periods relevant to the publication of Content may be defined by theCompany and published on the Platform and the ones sharing Content shall be bound by those rules, terms and periods published on the Platform. Company shall have the exclusive right to publish or remove the relevant Content even after the termination of this Agreement.
(iii) The User shall not share any Content having an illegal or inappropriate character or violating others’ personal, intellectual and commercial rights. In such case Decktopus reserve sits right to cease the publication of the Content temporarily or permanently without any notice to User. Responsibility with respect to all legal, commercial and administrative claims resulting from illegal Content shall belong to the relevant User and User shall be obliged to defend the Decktopus before all judicial, commercial and administrative authorities against any claims addressed to the Decktopus in respect thereof.
EXCEPTAS EXPRESSLY PROVIDED HEREIN, THEPLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUTWARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, DECKTOPUS EXPRESSLYDISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OFCOURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM,WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM OR SERVICES, OR THAT USE OF THE PLATFORM OR SERVICES WILL BEUNINTERRUPTED OR ERROR FREE, WARRANTIESAS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY PLATFORM CONTENT.
YOUACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
· THEENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM IS ANDREMAINS WITH YOU.
· WITHOUT LIMITING THEFOREGOING, DECKTOPUS DISCLAIMS ANY AND ALL LIABILITY RELATED TO (I) YOUR USE OFOR INABILITY TO USE THE PLATFORM, (II) THE ACTS OR OMISSIONS OF ANY OTHER USEROR ANY OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOURUSE OF THE PLATFORM, AND (III) ANYUSER OR PLATFORM CONTENT ACCESSED, VIEWED OR DOWNLOADED IN CONNECTION WITH THEUSE OF THE PLATFORM.
· YOUACKNOWLEDGE AND AGREE THAT BY ACCESSING AND USING THE PLATFORM, SUBMITTING ANDTRANSMITTING YOUR CONTENT, COMMUNICATING OR INTERACTING WITH OTHER USERS ANDACCESSING, VIEWING OR DOWNLOADING THE USER CONTENT OF OTHER USERS ARE DONE ATYOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE DECKTOPUS AND WAIVEANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BYANY OF THE FOREGOING.
· INNO EVENT WILL DECKTOPUS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOSTREVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION,COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILYINJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THISAGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) ORANY OTHER LEGAL THEORY, AND WHETHER OR NOT DECKTOPUS HAS BEEN INFORMED OF THEPOSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUNDTO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
· CERTAINSTATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSIVE ORLIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESELIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BYAPPLICABLE LAW. IN THE EVENT THAT THEFOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENTJURISDICTION TO BE UNENFORCEABLE, OUR AGGREGATE LIABILITY ARISING OUT OF OR INCONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS(US$100).
YOUACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OFLIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAINBETWEEN DECKTOPUS AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES AREFOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHINGIN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY,RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONOF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITYFOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OFIMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OFLIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS INTHIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OURLIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold DECKTOPUS its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise)of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform, including any and all features, functionality, tools, content and promotions available on and through theServices, (ii) Your Content, (iii) any interactions with any other User, (iv) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (v) your gross negligence or willful misconduct.
You agree that, at DECKTOPUS’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you conduct the defense, (i) DECKTOPUS may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and(ii) you will not enter into any settlement or other compromise without the prior written approval of DECKTOPUS (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
PLEASEREAD THIS SECTION CAREFULLY. IT AFFECTSYOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND DECKTOPUS HAVEAGAINST EACH OTHER ARE RESOLVED.
The Terms shall be governed by and interpreted in accordance with the laws of California without regard to conflict of law principles.
Not with standing any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof)or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its CommercialArbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in California before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in theEnglish language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
Subject to the above arbitration provisions, you and DECKTOPUS agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Platform, including the Website (collectively, “Disputes”) in the federal or state courts located in California and each of us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that DECKTOPUS retains the right to submit a Dispute to any court of competent jurisdiction. DECKTOPUS also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
YOUAGREE THAT YOU MAY BRING CLAIMS AGAINSTDECKTOPUS ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TOPARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION ORREPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLELAW. FURTHER, UNLESS BOTH YOU AND DECKTOPUSOTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONEPERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASSPROCEEDING.
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any noticeaddress or site link provided herein) in the future, that amendment will notapply to any claim that was filed in a legal proceeding against us prior to theeffective date of the amendment. However,the endment will apply to all other disputes or claims governed by thissection that have arisen or may arise between you and DECKTOPUS. We will notify you of amendments to thissection by posting the amended Terms on www.decktopus.com/terms. If you do not agree to the amended terms, you may close your accountwithin 30 days and you will not be bound by the amended dispute resolutionterms. If you do not have an account (oronce you have closed your account, if applicable), you must cease using thePlatform immediately. By rejecting anychange, you are agreeing that you will arbitrate any Dispute between you and DECKTOPUSin accordance with the provisions of this “Dispute Resolution” section as ofthe date you first accepted the Terms (or accepted any subsequent changes tothe Terms).
Our collection and use of information about Users is governed by our PrivacyNotice. By accessing and using the Platform, you consent to the collection and use of this information, including the transfer of this information outside the United States and/or other countries, for storage, processing and use by DECKTOPUS. As part of providing you the Platform, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Service, which you may not be able to opt-out from receiving.
Youmay not assign, transfer, delegate or sublicense any of your rights orobligations under the Terms, including by operation of law or merger orconsolidation, without our express prior written consent, which may be grantedor withheld in our sole discretion. Anyattempted assignment, transfer, delegation or sublicense without the foregoingconsent will be null and void. DECKTOPUS may assign, transfer, delegate and/orsublicense our rights and obligations under the Terms, in whole or in part, inits sole discretion, without restriction.
Subjectto the foregoing, the Terms will bind and inure to the benefit of the parties,their successors and assigns.
Exceptas otherwise expressly set forth herein, no agency, partnership, joint venture,employee-employer or franchiser-franchisee relationship is intended or createdby the Terms.
Anynotices or other communications permitted or required hereunder, includingthose regarding modifications to the Terms, will be in writing and given by DECKTOPUS(i) via e-mail (in each case to the address that you provide), or (ii) byposting to the Website. For notices madeby e-mail, the date on which such notice is transmitted will be deemed the dateof receipt.
Ourfailure to exercise any right or enforce any obligation under these Terms ofUse or to take action with respect to a breach by you or others will notconstitute a waiver of such right, obligation or breach. The waiver of any right, obligation or breachwill be effective only if in writing and signed by a duly authorizedrepresentative of DECKTOPUS. Inaddition, no waiver granted in any instance shall constitute a waiver in anyother instance.
Exceptas expressly set forth in the Terms, the exercise by either party of any of itsremedies under the Terms will be without prejudice to its other remediesavailable under contract, at law, in equity or otherwise.
Exceptas otherwise provided in the Terms, if an arbitrator or a court of competentjurisdiction finds any provision of the Terms to be invalid, void orunenforceable, in whole or in part, for any reason, the offending provisionwill be enforced to the maximum extent permissible and will not affect thevalidity or enforceability of the remaining provisions, which will remain infull force and effect.
Theheadings in the Terms are for reference purposes only and do not limit orotherwise affect the meaning or interpretation of any of the provisions hereof.
Exceptas otherwise expressly set forth herein, the Terms do not and are not intendedto confer any rights or remedies upon any person other than the parties hereto.
Inthe Terms, unless the context requires otherwise: (i) ”herein,” “hereof,”“hereunder,” “hereto,” and similar terms refer to the Terms collectively and asa whole, and not merely to the specific section, paragraph or clause in whichthe term appears; (ii) ”or” connotes any combination of all or any of theitems listed; and (iii) ”including” (and any of its derivative forms)means “including but not limited to.”
Ifyou have any questions or concerns, please contact DECKTOPUS at email@example.com.
Youcan also write to us at:
Pursuantto California Civil Code §1789.3, California residents are also entitled to thefollowing specific consumer rights notice:
Complaintsregarding the Platform or Services or requests to receive further informationregarding use of the Platform or Services may be sent to the above address orto firstname.lastname@example.org.
The Complaint Assistance Unit ofthe Division of Consumer Services of the California Department of ConsumerAffairs may be contacted in writing at 1625 North Market Boulevard, Suite N112,Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD(800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.