TERMS OF SERVICE
Effective Date: August 3, 2020
THESE TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION IN SECTION 11 THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
IF YOU BECOME A PAID MEMBER AND PAY BY CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD ASSOCIATED WITH AN AUTOMATICALLY RENEWING SUBSCRIPTION), YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR CERTAIN PERIODS OF TIME IF YOU DO NOT CANCEL PRIOR TO THE END OF THE TERM. SEE SECTIONS 6.d. AND 6.e. FOR MORE INFORMATION ON THE AUTOMATIC RENEWAL TERMS APPLICABLE TO SUBSCRIPTIONS.
1. ACCEPTANCE OF AGREEMENT
- These Terms of Service (the "Agreement") constitute a legal agreement that governs the relationship between users ("user", "users" or "you") and Appflame Limited, registered at Suites 41/42, Victoria House, 26 Main Street, Gibraltar, GX11 1AA, including its subsidiaries and/or affiliates ("Company", "we" or "us") in connection with the use of Zodianic application (the "Application"), Related Services (as defined below) and use of zodianic.com (“Site”).
- The Application is devoted to astrology, horoscopes, palmistry and alike. Please, take into account that any kind of data provided to you through the Application are provided for information purposes only. It is up to you whether to use this information as the basis for your everyday activities and decisions. Under no circumstances shall we be responsible for any consequences of using such information as the basis for any of your activities and decisions.
- We offer data (content) for the purposes described in clause 1.b. above as well as may offer additional services or products or modify or revise any part of the Application at our discretion, and this Agreement will be applicable to all services or products and all modified or revised services unless otherwise indicated (altogether “Related Services”, “Services” or “Service”). We also reserve the right to cease offering any part of the Services and you agree that the Company shall not be liable to you or any third party for any modification, revision, suspension or discontinuance of any part of the Services.
- Your use of certain parts of the Application may be subject to additional terms and conditions (if any), and such terms and conditions will be either listed in this Agreement, or will be presented or accessible to you when you sign up to use or use such Services ("Additional Terms"). All such Additional Terms are incorporated by reference into this Agreement unless otherwise indicated.
- All users of the Services, whether registered or not, are "users" for purposes of this Agreement. If you register for the Services by creating an account (profile), you become a “Member” but still may be referenced to as a “user” within the text of this Agreement.
2. CHANGES TO AGREEMENT
- THIS AGREEMENT AND ANY POLICY OR GUIDELINE OF THE SERVICE MAY BE MODIFIED BY US IN OUR SOLE DISCRETION AT ANY TIME. We shall provide notice of any such modification, which notice shall, at a minimum, consist of posting the revised Agreement to the Site.
- We indicate at the top of the page when this Agreement was last updated. If you are a non-subscribing user or not a paid Member at the time of any modification, unless otherwise indicated, any changes or modifications will be effective immediately upon posting the revisions to the Site, and your use of the Service after such posting will constitute acceptance by you of the revised Agreement. If you are a paid Member at the time of any change or modification, unless otherwise indicated, this Agreement will continue to govern your membership until such time that your subscription renews as contemplated by Section 6. If you continue your subscription, the renewal will constitute acceptance by you of the revised Agreement. Alternatively, if you terminate your subscription at such time, your use of the Service after your termination will constitute acceptance by you of the revised Agreement.
- You should frequently review this Agreement and all applicable terms and policies to understand the terms that apply to your use of the Service. If you do not agree to the amended terms, you must stop using our Services.
3. MOBILE SOFTWARE
- Our Service is available to you via a mobile or tablet device and your device must be compatible with our Application. The Company does not warrant that the Application will be compatible with your device. We hereby grant you a non-exclusive, personal, limited, revocable and non-transferable license to use a compiled code copy of the Application for one account (profile) on one device owned or leased solely by you, for your personal use only. You acknowledge that we may from time to time issue upgraded versions of the Application, and may automatically electronically upgrade the version of the Application that you are using on your device. You consent to such automatic upgrading on your device, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
- The App Store and Google Play. The following applies to the Application that you acquire or download from the iTunes Store/App Store managed by Apple, Inc., or Google Play managed by Google Inc. ("Application Platforms"):
- you acknowledge and agree that this Agreement is solely between you and the Company, not Apple, Inc. or Google Inc., and that they have no responsibility for the Application or content thereof. Your use of the Application Platforms must comply with their own terms of service;
- you acknowledge that Application Platforms have no obligation whatsoever to furnish any maintenance and support services with respect to the Application. In the event of any failure of the Application to conform to any applicable warranty, you may notify Application Platforms, and they will refund the purchase price for the Application to you; to the maximum extent permitted by applicable law, Application Platforms will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to the Company;
- you acknowledge that Application Platforms are not responsible for addressing any claims of you or any third party relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to the Company;
- you acknowledge that, in the event of any third-party claim that the Application or your possession and use of that Application infringes third party’s intellectual property rights, the Company, not Application Platforms, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement; and
- you and the Company acknowledge and agree that Application Platforms, and their subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Application, and that, upon your acceptance of the terms and conditions of this Agreement, Application Platforms will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Application against you as a third-party beneficiary thereof. Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the Application.
- No Support. This Agreement does not entitle you to receive from the Company, its licensors, or Application Platforms, any hard-copy documentation, support, telephone assistance, maintenance, or enhancements or updates to the Application.
- Export Controls. The Application and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country that is subject to a U.S. Government embargo or has been designated by the U.S. Government as a "terrorist supporting" country; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Application and/or supporting documentation, you are agreeing to the foregoing and you represent and warrant that you (a) are not located in, under the control of, or a national or resident of any such country or on any such list, (b) are not listed on any U.S. Government list of prohibited or restricted parties, and (c) you agree to comply with all United States and foreign laws related to use of the Application and other parts of the Service.
- Users Outside the U.S. If you are using the Mobile Software outside the U.S.A., then the following shall apply: (i) you confirm that this Agreement and all related documentation is and will be in the English language; (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Application or any services accessed or used in connection with the Application, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
- Injunctive Relief. You acknowledge and agree that your breach or threatened breach of this Section 3 shall cause to the Company irreparable damage for which recovery of money damages would be inadequate and that the Company therefore may seek timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
- The Application is designed for users over 16. If you install and/or use the Application, you confirm that you are at least 16 years old and have full legal capacity to enter into the Agreement. If you are between 16 and 18 years old, your parent, guardian or other representative of legal age has to check and agree to this Agreement on your behalf. If you install and/or use the Application, you confirm that your parent, guardian or other representative of legal age has agreed to the terms of this Agreement and permits you to use the Application.
- Accessing and/or using the Application is void where prohibited by applicable law of your location. By using the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
5. USE OF SERVICE
- You agree to use the Application in a manner permitted by this Agreement, and are solely responsible for any breach of your obligations under national laws and regulations, related policies, or this Agreement and for the consequences (including the lost and damages to the Application and any third-parties) of any such breach. You have no right to conduct following behaviors (including but not limited to):
- Delete copyright information, content on the Application or other copies;
- Reverse engineer, decompile or extract the source code of the Application;
- Conduct any behaviors that jeopardize computer network security, including but not limited to, use unauthorized data or unauthorized access to server/account; enter public computer network or other's computer system to delete, modify, add stored information without permission; attempt to search, scan, test the Application system, Internet leak, or other behaviors breaking internet security; attempt to interfere, damage the Application system or website normal running, deliver the malwares or virus intentionally to damage normal internet information service; forge (part of) names of TCP/IP package;
- Sell, rent, loan, deliver, transfer or sub-license the Application and Services, or related links, or benefit from using the Application and the Services, or barely benefit from the Agreement, regardless of whether the use above brings direct economic gain or pecuniary gain;
- Use the Application and other Services provided by the Company in any illegal ways, for any illegal purposes, or in any other ways conflicting with this Agreement. We reserve the right to terminate, fully or partially suspend, limit functional features of user's account, without prior notice, if the user has breached any terms of this Agreement.
- Profile Security. You understand that you are responsible for maintaining the confidentiality of the username and password of your profile, and you are fully responsible for all activities that occur under your username and password, including the purchase of any of our Paid Services (as defined in Section 6 below). You agree to immediately notify us if you suspect any unauthorized use of your username or password or any other breach of security. You acknowledge that we are not responsible for any loss or damage arising from the theft or misappropriation of your username or password.
- User Conduct. We are not responsible or liable in any manner for the conduct of our users, whether or not such conduct is in connection with the use of the Service. YOU ACKNOWLEDGE THAT YOU USE THE SERVICE AT YOUR OWN RISK.
- You understand and agree that if we believe in our sole discretion that you have violated the terms of this Agreement, misused the Service or behaved in a way that could be regarded as inappropriate, unlawful, illegal or unsafe, we may, among other things, investigate, take legal action against you and/or terminate your profile and cancel your subscription and/or membership and/or report your violations to competent authorities.
6. PAID SERVICES
- General. If you purchase any functionality of the Service that we may, from time to time, offer for a fee (the "Paid Service" or "Paid Services"), such as a paid subscription to our Services (if any), you authorize us and our designated payment processors to store your payment information and other related information. You also agree to pay the applicable fees for the Paid Services including without limitation periodic fees for ongoing subscriptions (the "Subscription Fees") as they become due plus all related taxes (including without limitation sales and use taxes, duties or other governmental taxes or fees), and to reimburse us for all collection costs and interest for any overdue amounts. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Paid Service (including partially used subscription periods) except (i) as expressly set forth in this Agreement, (ii) as otherwise required by applicable law and (iii) at our sole and absolute discretion. Fees for the Paid Service may be payable in advance, in arrears, per usage or as otherwise described when you purchase the Paid Service. All prices for the Paid Service are subject to change without notice (except as otherwise described in this Section 6).
- Payment Method. We may, from time to time, offer various payment methods, including without limitation payment by credit card, by debit card, by check, by certain mobile payment providers or by using PayPal. You authorize us to charge you for the Paid Service through any payment method(s) you select when purchasing the Paid Service (the "Payment Method") and you agree to make payment using such Payment Method(s) (we may, from time to time, receive and use updated payment method information provided by you or that financial institutions or payment processors may provide to us to update information related to your Payment Method(s), such as updated expiration dates or account numbers). Certain Payment Methods, such as credit cards and debit cards, may involve agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Methods (the "Payment Method Provider"). If we do not receive payment from your Payment Method Provider, you agree to directly pay all amounts due upon demand from us. Your non-termination or continued use of the Paid Service reaffirms that we are authorized to charge your Payment Method.
- The Paid Service may also be purchased through your accounts with certain third parties, such as your Apple iTunes account, your Google Play account or your Amazon account (a "Third Party Account"). If you purchase any Paid Service through a Third Party Account, billing for these Paid Service will appear through your Third Party Account. You should review the Third Party Account's terms and conditions, which we do not control.
- Automatic Renewal of Subscriptions. IF YOU PAY FOR A SUBSCRIPTION BY CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD INVOLVING AN AUTOMATICALLY RENEWING SUBSCRIPTION) AND YOU DO NOT CANCEL YOUR SUBSCRIPTION AS SET FORTH IN SECTION 6.e. BELOW PRIOR TO THE END OF THE SUBSCRIPTION TERM, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED AT THE END OF EACH TERM FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME DURATION AS THE SUBSCRIPTION TERM ORIGINALLY SELECTED (FOR EXAMPLE, UNLESS YOU CANCEL, A ONE MONTH SUBSCRIPTION WILL AUTOMATICALLY RENEW ON A MONTHLY BASIS AND A SIX-MONTH SUBSCRIPTION WILL AUTOMATICALLY RENEW ON A SIX-MONTH BASIS). UNLESS OTHERWISE INDICATED IN ANY APPLICABLE ADDITIONAL TERMS OR COMMUNICATIONS WE SEND TO YOUR REGISTERED EMAIL ADDRESS, SUCH RENEWAL WILL BE AT THE SAME SUBSCRIPTION FEE AS WHEN YOU FIRST SUBSCRIBED, PLUS ANY APPLICABLE TAXES, UNLESS WE NOTIFY YOU AT LEAST 10 DAYS PRIOR TO THE END OF YOUR CURRENT TERM THAT THE SUBSCRIPTION FEE WILL INCREASE. YOU ACKNOWLEDGE AND AGREE THAT YOUR PAYMENT METHOD WILL BE AUTOMATICALLY CHARGED FOR SUCH SUBSCRIPTION FEES, PLUS ANY APPLICABLE TAXES, UPON EACH SUCH AUTOMATIC RENEWAL. YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION IS SUBJECT TO AUTOMATIC RENEWALS AND YOU CONSENT TO AND ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES TO YOUR CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED ON THIS AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM YOU AND WITHOUT FURTHER NOTICE EXCEPT AS REQUIRED BY LAW. YOU FURTHER ACKNOWLEDGE THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE APPLICABLE TAX RATES CHANGE OR IF YOU ARE NOTIFIED THAT THERE WILL BE AN INCREASE IN THE APPLICABLE SUBSCRIPTION FEES.
- Cancellation of Subscriptions. TO CHANGE OR CANCEL YOUR SUBSCRIPTION AT ANY TIME, OTHER THAN PURSUANT TO SECTION 15, FOLLOW THE INSTRUCTIONS ON YOUR PROFILE SETTINGS PAGE. IF YOU PURCHASED A SUBSCRIPTION THROUGH A THIRD-PARTY ACCOUNT, YOU WILL NEED TO CANCEL YOUR SUBSCRIPTION THROUGH THAT THIRD PARTY AND IN ACCORDANCE WITH THAT THIRD PARTY'S TERMS AND CONDITIONS. IF YOU CANCEL YOUR SUBSCRIPTION, OTHER THAN PURSUANT TO SECTION 15, YOUR SUBSCRIPTION BENEFITS WILL CONTINUE UNTIL THE END OF YOUR THEN CURRENT SUBSCRIPTION TERM, BUT YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER THAT TERM EXPIRES. YOU WILL NOT BE ENTITLED TO A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR THE THEN CURRENT SUBSCRIPTION TERM, EXCEPT AS PROVIDED IN SECTION 15 OF THIS AGREEMENT OR AS REQUIRED BY APPLICABLE LAW.
- From time to time, we may offer free trials or other promotion. As an example, we may offer promotions that provide free subscriber-level access to the Service for a certain period of time. YOU MUST CANCEL YOUR SUBSCRIPTION BEFORE THE END OF THE PROMOTION PERIOD IN ORDER TO AVOID BEING AUTOMATICALLY CHARGED FOR SUBSCRIPTION FEES.
- Current Information Required. You agree to provide current, complete and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) as necessary for the processing of all payments that are due to the Company. You agree to promptly notify us if your Payment Method is canceled (for example, due to loss or theft) or if you become aware of a potential breach of security related to your Payment Method. If you fail to provide any of the foregoing information, you acknowledge that your current Payment Method may continue to be charged for the Paid Service and you remain responsible for all such charges.
- Change in Amount Authorized. If the total amount to be charged varies from the amount you authorized when purchasing any Paid Service (other than due to the imposition or change in the amount of taxes, including without limitation sales and use taxes, duties or other governmental taxes or fees), we will provide notice of the amount to be charged and the date of the charge at least 10 days before the scheduled date of the transaction. If you do not cancel your Paid Service before the increased price goes into effect, you agree to pay the increased price for the Paid Service. You agree that we may accumulate charges incurred and submit them as one or more aggregate charge during or at the end of each billing cycle. We will inform you of any additional charges that are accumulated.
- We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
7. INTELLECTUAL PROPERTY RIGHTS AND THIRD PARTY CONTENT
- The Application is developed by the Company independently. You acknowledge and agree that the Company retains all copyrights, trademarks, patents, business secrets, including all intellectual property rights and any other related rights, titles, and interests. The Application and the Related Services including but not limited to written expression and combination, icons, decorative pictures, tables, colors, user interface, framework, related data, printing materials, or electronic documents, are protected by copyright, trademark, patent and and other intellectual property laws and regulations including international agreements.
- You may not (and you may not permit anyone else to) take actions directly or indirectly that infringe or may infringe intellectual property rights and related interest of the Company (including but not limited to exploiting, assigning the referenced intellectual property rights above or permitting anyone else to do so). We reserve the right to charge the tort liabilities.
- You may not (or entrust a third party), whether on non-profit purpose or not, reverse engineer, decompile or attempt to derive source code of the Application, or create derivative works of product, services, plugins, extensions, compatibility, interconnection behaviors, etc. We reserve the right to charge the tort liabilities.
- Third Party Content. We may provide third party content in the Application and may provide links to web pages and content of third parties (collectively the "Third Party Content") as a service to those interested in this information. We do not control, endorse or adopt any Third Party Content and makes no representations or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that we are not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk.
- The Service may contain advertisements and promotions from third parties or may otherwise provide information about or links to third party products or services. Your dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. We are not responsible for, and does not endorse, any features, content, advertising, products, services or other materials on or available from third party sites. You agree that we shall not be responsible or liable, directly or indirectly, for any loss or damage of any sort incurred as the result of such dealings or as a result of the presence of such third party advertisers or third party information in the Application.
- THE COMPANY PROVIDES THE APPLICATION AND RELATED SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIM ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE (INCLUDING ALL PROPRIETARY MATERIALS AND OTHER INFORMATION AND CONTENT CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
- THE COMPANY DOES NOT REPRESENT AND WARRANT THAT (A) YOUR USE OF THE SERVICE WILL BE SECURE, UNINTERRUPTED, COMPLETE, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, (B) ANY DEFECTS IN THE SERVICE WILL BE CORRECTED OR (C) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SERVICE OR THE DELIVERY OF ANY MESSAGES.
- THE COMPANY DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION ON THE SERVICE, OR (ii) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY OR LIABILITY FOR THE CONDUCT OF ANY USERS OR MEMBERS OR FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN THE COMPANY. UNDER NO CIRCUMSTANCES WILL THE COMPANY BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR HARM OF ANY KIND RESULTING FROM ANY USER CONDUCT OR FROM ANYONE'S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SERVICE, OR TRANSMITTED TO OR BY ANY USERS.
- SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES AND TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
- In addition to the preceding paragraph and other provisions of this Agreement, ANY STATEMENT, CALCULATIONS OR INTERPRETATIONS THAT MAY BE POSTED ON THE SERVICE ARE FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY AND ARE NOT INTENDED TO REPLACE OR SUBSTITUTE FOR ANY PROFESSIONAL FINANCIAL, MEDICAL, LEGAL, OR OTHER ADVICE. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AND, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR RELIANCE ON THE STATEMENTS, CALCULATIONS, INTERPRETATIONS OR OTHER INFORMATION OFFERED OR PROVIDED WITHIN OR THROUGH THE SERVICE. IF YOU HAVE SPECIFIC CONCERNS OR A SITUATION ARISES IN WHICH YOU REQUIRE PROFESSIONAL OR MEDICAL ADVICE, YOU SHOULD CONSULT WITH AN APPROPRIATELY TRAINED AND QUALIFIED SPECIALIST.
10. LIMITATION OF LIABILITY
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICE, OR THE PROPRIETARY MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM THE COMPANY, OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE COMPANY'S RECORDS, PROGRAMS OR SERVICES. UNDER NO CIRCUMSTANCES WILL OUR AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICE, EXCEED THE GREATER OF (1) THE AGGREGATE AMOUNT OF FEES FOR ANY PAID SERVICE PAID BY YOU DURING THE IMMEDIATELY PRECEDING SIX MONTHS OR (2) $100.
- SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
11. GOVERNING LAW AND ARBITRATION; WAIVER; INDEMNIFICATION
- Mandatory Arbitration. Please read this Section carefully. YOU AND THE COMPANY, AND EACH OF OUR RESPECTIVE AGENTS, CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND ASSIGNS, AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION AND RELATED SERVICE, UNLESS YOU ARE LOCATED IN A JURISDICTION THAT PROHIBITS THE EXCLUSIVE USE OF ARBITRATION FOR DISPUTE RESOLUTION. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
- Commencing Arbitration. A party intending to seek arbitration must first send to the other, by an international courier with a tracking mechanism, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to the Company, via any other method available to us, including via e-mail. The Notice to the Company must be addressed to Appflame Limited, Suites 41/42, Victoria House, 26 Main Street, Gibraltar, GX11 1AA (the "Arbitration Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the "Demand"). If you and the Company do not reach an agreement to resolve the claim within 30 days after the Notice is received, then you or we may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE AMERICAN ARBITRATION ASSOCIATION ("AAA") WILL ADMINISTER THE ARBITRATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE "Rules"), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at http://www.adr.org. If you are required to pay a filing fee to commence an arbitration against the Company, then we will promptly reimburse you for your confirmed payment of the filing fee upon our receipt of a Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
- Arbitration Proceeding. The arbitration will be in English. A single independent and impartial arbitrator will be appointed pursuant to the Rules, as modified herein. You and the Company agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award the arbitrator renders may be entered in any court of competent jurisdiction.
- No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER LAW, YOU AND THE COMPANY AGREE THAT YOU AND THE COMPANY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID.
- Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator will issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator will be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of Delaware in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to this Section 11.
- Equitable Relief. The foregoing provisions of this Section 11 do not apply to any claim in which either party seeks equitable relief to protect such party’s copyrights, trademarks, or patents. For the avoidance of doubt, however, you acknowledge that, in the event the Company or a third party breaches this Agreement, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against us, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in this Agreement.
- Claims. You and the Company agree that, notwithstanding any other rights a party may have under law or equity, any cause of action arising out of or related to this Agreement or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
- Improperly Filed Claims. All claims you bring against the Company must be resolved in accordance with this Section. All claims filed or brought contrary to this Section will be considered improperly filed. Should you file a claim contrary to this Section, we may recover attorneys' fees and reimbursement of its costs, provided that we have notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
- Modifications. In the event that the Company makes any future change to the "Mandatory Arbitration" paragraph set forth above (other than a change to The Company’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to The Company’s Arbitration Notice Address, in which case your account with us and your license to use the Service will terminate immediately, and this Section, as in effect immediately prior to the amendments you reject, will survive the termination of this Agreement.
- Enforceability. If only the "No Class Actions" paragraph above or the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 11 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 12 will govern any action arising out of or related to this Agreement.
12. GOVERNING LAW
The laws of the State of Delaware, excluding its conflicts of law rules, govern this Agreement and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of the state and federal courts located in the State of Delaware, and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
You agree to defend, indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, managers, agents, contractors, partners and employees harmless from any loss, liability, claim, damages, costs, debts, expenses or demand, including reasonable attorney's fees, due to or arising from (i) your use of or access to the Service, including any data or content transmitted or received by you, or your inability to use the Service; (ii) your conduct in connection with the Service or other users, (iii) your violation of any of the terms of this Agreement, including without limitation your breach of any of the representations and warranties above, (iv) your violation of any rights of a third party, including without limitation any right of privacy or intellectual property rights; (v) any other party's access and use of the Service with your unique username, password or other appropriate security code or (vi) your violation of any applicable laws, rules or regulations.
- Unless otherwise provided, this Agreement is effective upon your first use of the Service and shall remain in effect until it is terminated in accordance with the terms of this Agreement.
- Termination by the Company. Notwithstanding anything to the contrary in this Agreement, we may suspend, deactivate or terminate your account and your right to use the Application and Related Services and may block or prevent your access to and use of the Service at any time in its sole discretion, for any reason or no reason, without explanation and without notice (including without limitation blocking users or Members from certain IP addresses). We also reserve the right to remove or block access to your account information or data from our Service and any other records at any time at our sole discretion. In the event that we determine that your access to any of the Service is terminated or suspended for cause, such as due to any breach of this Agreement, flagged conduct or content, third party complaints or the implementation of our repeat infringer policy, you agree that all fees then paid to the Company by you will be nonrefundable, except as otherwise provided by law, and all outstanding or pending payments under the terms of your subscription will immediately be due and payable. All decisions as to the refundability of the fees are in our sole discretion. Notwithstanding the foregoing, you may dispute any refunds of fees pursuant to Section 15 of this Agreement.
- Termination by You. In addition to any right to cancel your subscription pursuant to Section 15, below, you may deactivate or terminate your account at any time, for any or no reason, by accessing the settings page of your account or by contacting us as described above. If you purchased a subscription through a Third Party account, you will need to cancel your subscription through that Third Party and in accordance with that Third Party's terms and conditions. If you cancel your subscription, other than pursuant to section 15, your subscription benefits will continue until the end of your then-current subscription term, but your subscription will not be renewed after that term expires. Except as otherwise provided by law or under this Agreement, you will not be entitled to any refund of the fees you have paid to the Company and all outstanding or pending payments under the terms of your subscription will immediately be due and payable.
- Survival. After your account is suspended, deactivated or terminated, all terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination, including without limitation Sections 9, 10 and 11.
15. SPECIAL TERMS FOR SUBSCRIBERS RESIDING IN THE EUROPEAN UNION AND EUROPEAN ECONOMIC AREA
The following provisions are added to this Agreement for subscribers residing in the European Union and European Economic Area:
- Refunds. Generally, You have the right to cancel this Agreement without giving any reason within 14 days after the day of activation of your subscription (cancellation period). To exercise such right, you must inform us of your decision to cancel by sending an unequivocal statement to firstname.lastname@example.org. When contacting us via mail, please ensure that you insert sufficient information to identify you, e.g. your name, physical address, telephone number, name of your account (profile), e-mail address, etc.
- To meet the cancellation deadline, it is sufficient for you to send your communication concerning your cancellation before the withdrawal period has expired. Please note that if you choose to immediately use and access the Service during the cancellation period, your right of withdrawal will be lost. By accepting this Agreement, you expressly give your consent and confirm your acknowledgment that you will lose your right of withdrawal in the above-mentioned case.
- If you cancel this Agreement and your subscription, we will refund to you the full amount of your subscription without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to cancel it. We will carry out such refund using the same means of payment as you used for the initial transaction unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such refund.
- Arbitration and Jurisdiction. If you are a resident of the European Union and European Economic Area, the Agreement to arbitrate in Section 11 will not apply to you. The laws of Cyprus, excluding its conflicts of law principles, govern this Agreement and your use of the Service. The sole and exclusive jurisdiction and venue for any action or proceeding arising out of or related to this Agreement and your use of the Service shall be in an appropriate court located in Limassol, Cyprus. You hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
- If any provision, or any portion thereof, of this Agreement is held illegal, void, invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the remaining provisions will continue in full force and effect, unless otherwise indicated herein.
- This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
- The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
- Use of section headers in this Agreement is for convenience only and will not have any impact on the interpretation of particular provisions.
- You agree that no joint venture, partnership, employment, or agency relationship exists between you and the Company as a result of this Agreement or use of the Service.
If you have questions or concerns regarding these Terms of Service, please feel free to contact us or write to us at:
Victoria House, 26 Main Street,
Gibraltar, GX11 1AA