Notification of Change in Keenai Service Provider in Connection with Business Transfer
(Effective date on April 1, 2018)
Ricoh Innovations Corporation is pleased to announce that an agreement has been reached to transfer the Keenai business, which we operate, to our parent company Ricoh Company, Ltd. Along with the transfer of this business, Ricoh Company, Ltd. will also operate Keenai.
Overview of Change in Service Provider:
The scope of the business transfer covers all business related to Keenai that Ricoh Innovations Corporation operates. Service names, apps and all other services provided will be transferred in their entirety as well as user registration information to the new service provider pursuant to the Keenai Privacy and Cookies Policy and Keenai Terms and Conditions Agreement.
Keenai Terms and Conditions Agreement
Effective Date: November 14, 2016
Last Updated: March 15, 2018
WHO WE ARE AND WHAT THIS AGREEMENT DOES
PLEASE READ THIS TERMS AND CONDITIONS AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”) AND RICOH COMPANY, Ltd. (“RCL,” “WE,” OR “US”). THE KEY TERMS YOU SHOULD CONSIDER ARE THE LIMITATIONS ON LIABILITY CONTAINED IN SECTIONS 9. DISCLAIMER OF WARRANTIES AND CONDITIONS AND 10. OUR RESPONSIBILITY FOR LOSS OR DAMAGE SUFFERED BY YOU (LIMITATION OF LIABILITY).
FOR USERS OUTSIDE THE EUROPEAN UNION (“EU”) ONLY: SECTION 12 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
This Agreement sets out the terms and conditions upon which we allow you to use our website located at app.keenai.com and/or our mobile application (“App“) (collectively, the “Site”). By accessing or using the Site, accessing or using any content, information, services, features or resources available or enabled via the Site (collectively with the Site, the “Services”), clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Appstore and Android Terms
The ways in which you can use the App may also be controlled by the Apple and Google Appstore’s rules and policies and those policies will apply instead of these terms where there are differences between the two.
Subject to Section 12.9 of this Agreement, RCL reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes. Where we may make significant changes to the Site and/or this Agreement, we may notify you of any changes by any reasonable means, including by posting a revised version of these terms through the Site or by emailing you at the address you provided upon registering for an Account.
1. Registration. When registering an account for the Services (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify RCL immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same RCL service at any given time. RCL reserves the right to remove or reclaim any usernames at any time and for any reason. Subject to rights in “Your Content”, you acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of RCL.
2. Fees and Purchase Terms.
2.1 General Purpose of Terms: Sale of Service, not Software. The purpose of this Agreement is for you to secure access to the Services. All fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose.
2.2 Payment. 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 also agree to pay all applicable taxes. You must provide RCL with valid payment information in connection with your orders. By providing RCL with your payment information, you agree that (i) RCL is authorized to immediately invoice your Account for all fees and charges due and payable to RCL hereunder, (ii) RCL is authorized to share any payment information and instructions required to complete the payment transactions with its third-party payment service providers (e.g., credit card transaction processing, merchant settlement, and related services), and (iii) no additional notice or consent is required for the foregoing authorizations. You agree to immediately notify RCL of any change in your payment information. RCL reserves the right at any time to change its prices and billing methods.
2.3 Automatic Renewal. Certain features of the Services are available at additional cost. The renewal fee shall be the then-current fee for the applicable Services. RCL reserves the right to modify the fees and charges and to introduce new charges at any time. Subscriptions to paid Services automatically renew monthly or annually (depending on whether you ordered a monthly or annual subscription) until you cancel the Services. You may cancel a Service at any time prior to renewal of the applicable Service. You agree to pay all fees or changes 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. Any applicable taxes, levies, or duties imposed by taxing authorities will be in addition to RCL’s fees, and you are responsible for payment of all such taxes, levies or duties.
2.4 Refunds. Subject to your EU consumer statutory rights, all payments are nonrefundable (even if you cancel any Services prior to the expiration of the term).
2.5 Discounts and Promo Codes. We may, in our sole discretion, create discounts and promotional codes that may be redeemed for credit in your Account, or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Promo Codes may only be used once per person. Only Promo Codes sent to you through official RCL communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not redeemable for cash; and (vi) may expire prior to your use.
3. User Content.
3.1 Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each User is entirely responsible for all content that that User makes available through the Services (“User Content”). RCL has no obligation to pre-screen any content. You use all User Content and interact with other Users at your own risk. Without limiting the foregoing, RCL reserves the right in its sole discretion to pre-screen, refuse, or remove any content. RCL shall have the right to remove any content that violates this Agreement or is otherwise objectionable.
3.2 Ownership of Your Content. RCL does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a User post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant RCL the license set forth in Section 3.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Services.
3.3 License to Your Content. Subject to any applicable Account settings that you select, you grant RCL the right and license to use and display Your Content (in whole or in part) for the purposes of operating and providing the Services on the basis that such license is:
- irrevocable – once agreed, you cannot remove or restrict our right to use Your Content as described above;
- non-exclusive – you and, if you let them, other people can use Your Content;
- royalty-free and fully-paid – we don’t have to pay you or any other party (either now or in the future) to use Your Content in the fashion described above;
- worldwide – we can use Your Content in the manner described above anywhere in the world; and
- sub-licensable – you allow us to authorize other businesses and individuals to use the license described above, for the purposes of including Your Content as part of the Services.
Please note that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.
3.4 Backing up User Content. We are not obligated to backup User Content, and Your Content may be deleted at any time without prior notice – accordingly we recommend you store and backup copies elsewhere.
3.5 Moral rights waiver. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to Your Content.
3.6 Do not send us confidential information in Your Content. Please note that User Content will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary. You acknowledge that your communications with other users via the Services are public and not private communications, and that you have no expectation of privacy in respect of such communications.
3.7 Ratings and Reviews. Ratings and reviews posted by Users on our Services are User Content that is not endorsed by RCL and does not represent the views of RCL. RCL does not assume liability for ratings and reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect Users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable business, product, or service; (ii) you will not provide a rating or review for any business, product, or service with respect to which you have a competitive, ownership or other economic interest, employment relationship or other affiliation; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If we determine, in our sole and reasonable discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.
3.8 Other Restrictions on User Conduct. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without RCL’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of RCL
4. Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to RCL (“Feedback”) is at your own risk and that RCL has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to RCL the right to use any Feedback in any way at any time without any additional approval or compensation. Please note that the Feedback you provide to us will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary.
5. Ownership of and License to Use RCL Properties.
5.1 Use of the Services. Except with respect to User Content, RCL and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, RCL grants you a limited license to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. RCL, its suppliers and service providers reserve all rights not granted in this Agreement.
5.2 Trademarks. RCL’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of RCL and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
6. Restrictions on Use of Services. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, logo or Services (including images, text, page layout or form) of RCL; (c) you shall not use any metatags or other “hidden text” using RCL’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant 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); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Services. Any unauthorized use of the Services terminates the licenses granted by RCL pursuant to this Agreement.
6.1 Monitoring and Investigations. RCL has no obligation to pre-screen any User Content. You use all User Content and interact with other users at your own risk. RCL reserves the right in its sole discretion to pre-screen, refuse, or remove any User Content and investigate any possible violations by you of this Agreement. RCL shall have the right, in its sole discretion, to remove any User Content that violates this Agreement or is otherwise objectionable take further actions in accordance with Section 11.
7. Third-Party Links. The Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. RCL does not control and is not responsible for Third-Party Links. RCL provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
8. Indemnification. You agree to indemnify and hold RCL, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “RCL Parties”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) Your Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. RCL reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with RCL in asserting any available defenses. This provision does not require you to indemnify any of the RCL Parties for any unconscionable commercial practice by such party or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact. You agree that the provisions in this section will survive any termination of your Account, this Agreement or your access to the Services.
9. Disclaimer of Warranties and Conditions. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES AND ANY OFFERED THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RCL PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. RCL PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS OR (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
CERTAIN STATE AND FOREIGN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10. Our Responsibility for Loss or Damage Suffered by You (Limitation of Liability).
10.1 Disclaimer of Certain Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RCL PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT RCL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS MEANS THAT IF WE FAIL TO COMPLY WITH THESE TERMS, WE ARE RESPONSIBLE FOR LOSS OR DAMAGE YOU SUFFER THAT IS A FORESEEABLE RESULT OF OUR BREACHING THESE TERMS OR OUR FAILING TO USE REASONABLE CARE AND SKILL, BUT WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT IS NOT FORESEEABLE. LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME THESE TERMS ARE ENTERED INTO, BOTH WE AND YOU KNEW IT MIGHT HAPPEN.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT THE RCL PARTIES ARE LIABLE TO YOU EXCEED THE GREATER OF (A) THE TOTAL AMOUNT ACTUALLY PAID TO RCL BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE OR REGULATION UNDER WHICH SUCH CLAIM ARISES, OR (C) ONE HUNDRED DOLLARS ($100). THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A RCL PARTY FOR (X) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY A RCL PARTY’S GROSS NEGLIGENCE OR FOR (Y) ANY INJURY CAUSED BY A RCL PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.3 User Content and Settings. THE RCL PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
10.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RCL AND YOU.
10.5 Exclusions. THE LAWS OF SOME STATES AND COUNTRIES DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU AND YOU MIGHT HAVE OTHER RIGHTS. IN ADDITION, THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES SHALL NOT APPLY TO USERS WHO RESIDE IN THE STATE OF NEW JERSEY OR USERS IN THE EU
10.6 Your Liability. YOU AGREE TO COMPENSATE US FOR ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS AND EXPENSES (INCLUDING LEGAL COSTS AND EXPENSES) REASONABLY INCURRED BY US THAT ARISE OUT OF YOUR USE OF THE SERVICES IN BREACH OF THESE TERMS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENCE AND CONTROL OF ANY CLAIM BROUGHT BY A THIRD PARTY IN CONNECTION WITH YOUR USE OF THE SERVICES AND YOU AGREE TO ASSIST AND COOPERATE WITH US IN RELATION TO ANY SUCH CLAIM.
10.7 Losses That Cannot Be Excluded (EU Users Only): Nothing in these Terms shall limit or exclude our liability for:
(a) death or personal injury resulting from our negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be excluded or limited by applicable law.
11. Termination. Your rights under this Agreement will automatically terminate without notice if you fail to comply with the terms. Further, at its sole discretion, RCL may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, including if we determine that your use violates the Agreement or is otherwise improper or harms our interests or those of other Users, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, RCL reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to RCL for Services purchased will remain due.
12. Dispute Resolution. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires you to arbitrate most disputes with RCL and limits the manner in which you can seek relief from us. PLEASE NOTE THIS SECTION 12 DOES NOT APPLY TO USERS LOCATED IN THE EU.
12.1 Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Services, our advertising or marketing practices, or this Agreement, 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, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or RCL 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 Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH RCL, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST RCL ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING COVERED CLAIMS AGAINST RCL ONLY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS ARBITRATION AGREEMENT.
12.2 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 General Counsel, RCL, 10050 North Wolfe Road, Suite SW2-260, Cupertino, CA 95014 USA. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ 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 you cannot obtain a waiver from JAMS, RCL will pay them for you. In addition, RCL will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims with an amount in controversy 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 county 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.
12.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to 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 arbitrator will decide the rights and liabilities, if any, of you and RCL. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. 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 this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. 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.
12.4 Waiver of Jury Trial. YOU AND RCL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and RCL are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in section 12.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement 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.
12.5 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, in the event that this section 12.5 is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor we shall be entitled to arbitration of such claim or dispute and instead the applicable claim or dispute shall be resolved in a court as set forth in section 13.5.
12.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: RCL, 10050 North Wolfe Road, Suite SW2-260, Cupertino, CA 95014 USA Attn: General Counsel or firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement 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 with us, or may enter into in the future with us.
12.7 Severability. Subject to section 12.5, 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.
12.8 Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with RCL.
12.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if RCL makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) of which you had already provided notice to RCL.
13. General Provisions.
13.1 Electronic Communications. The communications between you and RCL use electronic means, whether you visit the Services or send RCL e-mails, or whether RCL posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from RCL in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that RCL provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in “writing.” The foregoing sentence does not affect your statutory rights.
13.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without RCL’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
13.3 Force Majeure. RCL 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.
13.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at email@example.com.
13.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and RCL agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state courts in Santa Clara County, California or federal courts located in the Northern District of California.
13.6 Governing Law. This Agreement 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 conflict of law or other principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement. FOR EU USERS: IF YOU ARE RESIDENT IN IN THE UNITED KINGDOM OR THE EU, YOU MAY BRING A CLAIM TO ENFORCE YOUR CONSUMER PROTECTION RIGHTS IN CONNECTION WITH THESE TERMS IN THE UNITED KINGDOM OR THE EU COUNTRY IN WHICH YOU LIVE.
13.7 Notice. Where RCL requires that you provide an e-mail address, you are responsible for providing RCL with your most current e-mail address. In the event that the last e-mail address you provided to RCL is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, RCL’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to RCL at the following address: RCL, 10050 North Wolfe Road, Suite SW2-260, Cupertino, CA 95014 USA, Attn: General Counsel. Such notice shall be deemed given when received by RCL by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.9 Severability. Subject to Section 12.5, 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.
13.10 Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services 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 the Services, 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 the Services for any purpose prohibited by U.S. law.
13.11 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.
13.12 Entire Agreement. This 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.