TAFI Avatars – VRChat Edition End User License Agreement (“Agreement”)
Last update: 8/13/2019
Welcome, and thank you for your interest in the Tafi Avatars VR Chat Edition
Application being offered by Tafi (“TAFI,” “we,” or “us”) and our website at
http://www.maketafi.com, along with our related websites, networks, desktop
applications (“Desktop Client”), mobile applications (“Mobile App”), software
developer kit (“SDK”), any free content or content which is offered for an additional
license fee (“Content”), and other services provided by us (collectively, our
“Service”). This End User License Agreement (this “EULA”), is a legally binding
contract between you and TAFI regarding your use of the Service.
BY USING THE SERVICE YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT.
You acknowledge and agree that:
• the Service is licensed, not sold to you, and you may use the Service only as
set forth in this EULA;
• the Service is provided “as is” without warranties of any kind and TAFI’s
liability to you is limited;
• disputes arising under this EULA will be resolved by binding arbitration, and
by accepting this EULA, as described in greater detail in Section 24, you and TAFI
are each waiving the right to a trial by jury or to participate in a class action;
1.
TAFI Service Overview. The Service is a platform and application for viewing,
creating, and publishing avatars for use in the social virtual reality experiences
offered by VRChat. More information on VRChat and their social experiences can be
found at http://www.vrchat.com.
2.
Eligibility. You must be at least 13 years of age to use the Service. By
agreeing to this EULA, you represent and warrant to us that: (a) you are at least 13
years of age; (b) you have not previously been suspended or removed from the
Service; and (c) your registration and your use of the Service complies with all
applicable laws and regulations. If you are using the Service on behalf of an entity,
organization, or company, you represent and warrant that you have the authority to
bind that organization to this EULA and you agree to be bound by this EULA on
behalf of that organization.
3.
Accounts and Registration. To access most features of the Service, you must
register for an account. When you register for an account, you may be required to
provide us with some information about yourself, such as your email address or
other contact information. You agree that the information you provide to us is
accurate and that you will keep it accurate and up-to-date at all times. When you
register, you will be asked to provide a password. You are solely responsible for
maintaining the confidentiality of your account and password, and you accept
responsibility for all activities that occur under your account. If you have reason to
believe that your account is no longer secure, then you must immediately notify us
4.
License. Subject to your complete and ongoing compliance and agreement
with the terms and conditions in this EULA (including without limitation payment of
any applicable fees and compliance with all license restrictions),TAFI grants you a
limited, non-exclusive, non-transferable, non-sublicensable, revocable license to the
Service for your personal use for lawful purposes, and to access and use the Service
in accordance with this EULA. You may not reproduce, distribute, publicly display, or
publicly perform the Service or any part of the Service. Unless, and solely to the
extent that, such a restriction is impermissible under applicable law or applicable
third party license, you may not: (a) decompile, reverse engineer, or otherwise
access or attempt to access the source code for the Service, or make or attempt to
make any modification to it; or (b) interfere with or circumvent any feature of the
Service, including without limitation any security, or access control mechanism. You
may not use the Service for any purpose other than a purpose for which it is
expressly designed. You represent and covenant that you have complied and will
continue to comply with the rights and obligations set forth in this Section with
regards to your use of any Service previously downloaded or accessed.
5.
SDK License. TAFI does not currently offer an SDK license for this Service.
This section is a placeholder for that offering if or when it is added to the Service.
6.
Payment. Access to the Service, or to certain features of the Service, may
require you to pay fees. Before you pay any fees, you will have an opportunity to
review and accept the fees that you will be charged. All fees are in U.S. dollars and
are non-refundable. If TAFI changes the fees for the Service, including by adding
additional fees or charges, TAFI will provide you advance notice of those changes. If
you do not accept the changes, TAFI may discontinue providing the Service or
portions of the Service to you. TAFI will charge the payment method you specify at
the time of purchase. You authorize TAFI to charge all sums as described in this
EULA, for the Service you select, to that payment method. If you pay any fees with
a credit card, TAFI may seek pre-authorization of your credit card account prior to
your purchase to verify that the credit card is valid and has the necessary funds or
credit available to cover your purchase. If you use the Service to update or cancel
any existing authorized payment, it may take up to 10 business days for the update
or cancellation to take effect.
7.
User Content
7.1.
User Content Generally. Certain features of the Service may permit users to
upload content to the Service, including software code, messages, photos, video,
images, folders, data, text, and other types of works (“User Content”) and to publish
User Content on the Service. You retain copyright and any other proprietary rights
that you may hold in the User Content you post to the Service.
7.2.
Limited License Grant to TAFI. By posting, publishing, or otherwise developing
User Content in the Service, you grant TAFI a worldwide, non-exclusive, irrevocable,
royalty-free, perpetual, fully paid right and license (with the right to sublicense) to
host, store, transfer, display, perform, reproduce, modify for the purpose of
formatting for display, and distribute your User Content, in whole or in part, in any
media formats and through any media channels now known or hereafter developed.
You agree that the license granted to TAFI under this Section 7.2 applies to any User
Content you previously posted, published, or otherwise developed in the Service.
7.3.
Limited License Grant to Other Users. By posting or sharing User Content with
other users of the Service in a public portion of the Service, or by setting any of
your User Content to public, you grant those users a non-exclusive license to access
and use that User Content as permitted by this EULA and the functionality of the
Service.
7.4.
User Content Representations and Warranties. You are solely responsible for
your User Content and the consequences of posting or publishing User Content. By
posting or publishing User Content, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary
licenses, rights, consents, and permissions to authorize TAFI and users of the
Service to use and distribute your User Content as necessary to exercise the
licenses granted by you in this section, in the manner contemplated by TAFI, the
Service, and this EULA; and
b. your User Content, and the use of your User Content as contemplated by this
EULA, does not and will not: (i) infringe, violate, or misappropriate any third-party
right, including any copyright, trademark, patent, trade secret, moral right, privacy
right, right of publicity, or any other intellectual property or proprietary right; (ii)
slander, defame, libel, or invade the right of privacy, publicity or other property
rights of any other person; or (iii) cause TAFI to violate any law or regulation.
7.5.
User Content Disclaimer. TAFI is under no obligation to edit or control User
Content that you or other users post or publish, and will not be in any way
responsible or liable for User Content. TAFI may, however, at any time and without
prior notice, screen, remove, edit, block, or remove the rights to use of the Service
for a user who created any User Content that in our sole judgment violates this
EULA or is otherwise objectionable. You understand that when using the Service you
will be exposed to User Content from a variety of sources and acknowledge that
User Content may be inaccurate, offensive, indecent, or objectionable. You agree to
waive, and do waive, any legal or equitable right or remedy you have or may have
against TAFI with respect to User Content. We expressly disclaim any and all liability
in connection with User Content. If notified by a user or content owner that User
Content allegedly does not conform to this EULA, we may investigate the allegation
and determine in our sole discretion whether to remove the User Content, which we
reserve the right to do at any time and without notice. For clarity, TAFI does not
permit copyright-infringing activities on the Service.
8.
Digital Millennium Copyright Act
8.1.
DMCA Notification. TAFI complies with the provisions of the Digital Millennium
Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended).
If you have an intellectual property rights-related complaint about material posted
on or through the use of the Service, you may contact our Designated Agent at the
following address:
TAFI
ATTN: Copyright Notification
224 South 200 West, Suite 250
Salt Lake City, UT 84101
Email: [email protected]
Any notice alleging that materials hosted by or distributed through the Service
infringe intellectual property rights must include the following information:
• an electronic or physical signature of the person authorized to act on behalf
of the owner of the copyright or other right being infringed;
• a description of the copyright-protected work or other intellectual property
right that you claim has been infringed;
• a description of the material that you claim is infringing and where it can be
found or seen;
• your address, telephone number, and email address;
• a statement by you that you have a good faith belief that the use of those
materials on the Service is not authorized by the copyright owner, its agent, or the
law; and
• a statement by you that the above information in your notice is accurate and
that, under penalty of perjury, you are the copyright or intellectual property owner
or authorized to act on the copyright or intellectual property owner’s behalf.
9.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
• use the Service for any illegal purpose or in violation of any local, state,
national, or international law;
• violate, or encourage others to violate, any right of a third party, including by
infringing or misappropriating any third party intellectual property right;
• share, publicly post, copy, or distribute another user’s User Content without
their permission;
• post, upload, or distribute any User Content or other content that is unlawful,
defamatory, libelous, inaccurate, or that a reasonable person could deem to be
objectionable, profane, indecent, pornographic, harassing, threatening,
embarrassing, hateful, or otherwise inappropriate;
• interfere with security-related features of the Service, including by: (a)
disabling or circumventing features that prevent or limit use or copying of any
content; or (b) reverse engineering or otherwise attempting to discover the source
code of any portion of the Service, including the SDK Object Code, except to the
extent that the limiting of such activity is expressly restricted by applicable law;
• upload to the Service any software code, routine, or instructions that interfere
with, or otherwise attempt to impair, the operation of the Service, any user’s
enjoyment of the Service, or any user’s underlying code or hardware, including by:
(a) uploading or otherwise disseminating any virus, adware, spyware, worm, or
other malicious code; (b) making any unsolicited offer or advertisement to another
user of the Service; (c) attempting to collect personal information about another
user or third party without consent; or (d) interfering with or disrupting any network,
equipment, or server connected to or used to provide the Service, or violating any
regulation, policy, or procedure of any such network, equipment, or server;
• perform any fraudulent activity including impersonating any person or entity,
claiming a false affiliation, accessing any other Service account without permission,
or falsifying your age or date of birth;
• bypass any security or other features of the Service designed to control how
the Service is used, harvest, or mine User Content from the Service, or otherwise
access or use the Service in a manner inconsistent with individual human usage;
• use any robot, spambot, spider, crawler, scraper, or other automated means
or interface not provided by us to access the Service or to extract data;
• decipher, reverse engineer, decompile, or disassemble the Service in whole
or in part, or authorize, direct, or cause a third party to do so;
• use, display, mirror, frame, or utilize framing techniques to enclose the
Service or any Content available through the Service, or any portion or component
of the Service, unless and solely to the extent TAFI provides the means for
embedding any part of the Service or the Content;
• access, tamper with, or use non-public areas of the Service, TAFI (and its
hosting company’s) computer systems and infrastructure, or the technical delivery
systems of TAFI’s providers;
• use the Service in any manner to harass, abuse, stalk, threaten, defame, or
otherwise infringe or violate the rights of any other party;
• sell or otherwise transfer the access granted under this EULA or any Materials
(as defined below) or any right or ability to view, access, or use any Material; or
• attempt to do any of the acts described in this Section 9, or assist or permit
any person in engaging in any of the acts described in this Section 9.
10.
Termination of Use; Discontinuation and Modification of the Service. You may
terminate your account at any time by contacting customer service at
[email protected] If you terminate your account, you remain obligated to pay
all outstanding fees, if any, incurred prior to termination relating to your use of the
Service. TAFI may in its sole discretion terminate your user account on the Service
or suspend or terminate your access to the Service at any time for any reason or no
reason, with or without notice. We also reserve the right to modify or discontinue
the Service at any time (including by limiting or discontinuing certain features of the
Service), temporarily or permanently, without notice to you. You agree that TAFI will
have no liability to you due to any change to the Service or any suspension or
termination of your access to or use of the Service.
11.
Third-Party Services and Linked Websites. TAFI may provide tools or
functionality through the Service that enable you to export information, images,
video, and possibly User Content, to or for use in third party services, including
through features that allow you to link your account on the Service with an account
on the third party service, or through third party buttons (such as “like” or “share”
buttons). By using one of these tools, you agree that TAFI may transfer that
information to the applicable third-party service. Third party services are not under
our control, and we are not responsible for any third party service’s use of your
exported information. The Service may also contain links to third-party websites.
Linked websites are not under our control, and we are not responsible for their
content.
12.
Consent to Use of Data. You agree that TAFI may collect and use technical
data and related information, including but not limited to UDID and other technical
information about your device that is gathered periodically to facilitate the provision
of software updates, product support related to the Service, and to anonymously
track and report your activity inside of the Service, including for analytics purposes.
If you are located outside of the United States, you expressly consent to the transfer
and processing of your data outside your home jurisdiction.
13.
IP Ownership, Reservation of Rights. The Service is owned and operated by
TAFI. The applications, SDK, content, visual interfaces, interactive features,
information, graphics, design, compilation, computer code, products, services, and
all other elements of the Service (the “Materials”), are protected by copyright, trade
dress, patent, and trademark laws of the United States and other jurisdictions,
international conventions, and all other relevant intellectual property and
proprietary rights, and applicable laws. All Materials, including all associated
intellectual property rights, are the sole and exclusive property of TAFI, its
subsidiaries or affiliated companies, or its third-party licensors. You may not to sell,
license, distribute, copy, modify, publicly perform or display, transmit, publish, edit,
adapt, create derivative works from, or use the Materials except as expressly
authorized under this EULA. TAFI reserves all rights not expressly granted in this
EULA. You do not acquire any right, title, or interest to the Materials, whether by
implication, estoppel, or otherwise, except for the limited rights set forth in this
EULA.
14.
Third Party Software. The Service may include certain third party software
(“Third Party Software”) provided under separate license terms (the “Third Party
Terms”). The list of such Third Party Software and its respective terms can be found
at https://maketafi/thirdypartsoftware . Copyrights to the Third Party Software are
held by the respective copyright holders indicated there.
15.
Entire Agreement. This Agreement is the entire End User License Agreement
between you and TAFI and supersedes any other or previous agreements that are in
conflict with this Agreement.
16.
Modification of this EULA. TAFI reserves the right, to change this EULA on a
going-forward basis at any time. Please check this EULA periodically for changes.
This EULA will be identified by the most recent date of revision and will be effective
immediately upon being made available through http://maketafi.com/VRChat-EULA.
Your use of the Service after modifications to this EULA become effective constitutes
your binding acceptance of such changes. If you are dissatisfied with the terms of
this EULA or any modifications to this EULA, then you agree that your sole and
exclusive remedy is to discontinue any use of the Service.
17.
Feedback. If you provide TAFI with any comments, bug reports, feedback, or
modifications proposed or suggested by you for the Service (“Feedback”), such
Feedback is provided on a non-confidential basis (notwithstanding any notice to the
contrary you may include in any accompanying communication), and TAFI will have
the right to use such Feedback at its discretion, including, but not limited to the
incorporation of such suggested changes into the Service. You hereby grant TAFI a
perpetual, irrevocable, nonexclusive license under all rights necessary to so
incorporate and use your Feedback for any purpose.
18.
Indemnity. You are responsible for your use of the Service, and you will
defend and indemnify TAFI and its officers, directors, employees, consultants,
affiliates, subsidiaries, and agents (together, the “TAFI Entities”) from and against
every claim, liability, damage, loss, and expense, including reasonable attorneys’
fees and costs, arising out of or in any way connected with: (a) your access to, use
of, or alleged use of, the Service; (b) your violation of any portion of this EULA, any
representation, warranty, or agreement referenced in this EULA, or any applicable
law or regulation; (c) your violation of any third-party right, including any
intellectual property right or publicity, confidentiality, other property, or privacy
right; or (d) any dispute or issue between you and any third party. We reserve the
right, at our own expense, to assume the exclusive defense and control of any
matter otherwise subject to indemnification by you (without limiting your
indemnification obligations with respect to that matter), and in that case, you agree
to cooperate with our defense of that claim.
19.
Disclaimers; No Warranties
THE SERVICE AND ALL OF ITS RESPECTIVE PARTS AND ALL MATERIALS AND
CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN
“AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER
EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
THE TAFI ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE
THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT,
OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF
DEALING, USAGE, OR TRADE. THE TAFI ENTITIES DO NOT WARRANT THAT THE
SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT
OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF
ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT
THAT ANY OF THOSE ISSUES WILL BE CORRECTED. TAFI EXPRESSLY DISCLAIMS ANY
WARRANTIES OF ANY KIND WITH RESPECT TO THE ACCURACY OR FUNCTIONALITY
OF LOCATION BASED SERVICES, AND WITH RESPECT TO THE ACCURACY, VALIDITY,
OR COMPLETENESS OF ANY INFORMATION OR FEATURES AVAILABLE THROUGH THE
SERVICE, OR THE QUALITY OR CONSISTENCY OF THE SERVICE. TAFI FURTHER
DISCLAIMS ANY WARRANTY OR LIABILITY RELATED TO YOUR CARRIER’S NETWORK
OR SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU
FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE
SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TAFI ENTITIES OR
THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS EULA. YOU ASSUME ALL RISK
FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE
SERVICE, YOUR DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR
CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT
YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN
MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR
SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER
SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE
LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD
OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY
HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
20.
Limitation of Liability
IN NO EVENT WILL TAFI BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS
OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR
RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE,
THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED
ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY
OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TAFI ENTITY HAS BEEN
INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 24.4(iii), THE AGGREGATE LIABILITY OF TAFI FOR
ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO
USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS EULA, WHETHER IN
CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE
AMOUNT YOU HAVE PAID TO TAFI FOR ACCESS TO AND USE OF THE SERVICE IN THE
12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM;
OR (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY
FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE
LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THIS EULA THAT PROVIDES FOR A LIMITATION OF LIABILITY,
DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND
DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS EULA. THIS
ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN
THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF
ALL OTHER PROVISIONS OF THIS EULA. THE LIMITATIONS IN THIS SECTION 20 WILL
APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21.
THIRD PARTY DISPUTES. TAFI IS NOT AFFILIATED WITH ANY CARRIER, SERVICE
PROVIDER, OR ADVERTISER, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER,
SERVICE PROVIDER, ADVERTISER, OR OTHER THIRD PARTY, INCLUDING WITHOUT
LIMITATION ANY OTHER USER OF ANY SERVICE, IS DIRECTLY BETWEEN YOU AND
SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE TAFI (AND OUR OFFICERS,
DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM
CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND
AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY
CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU
WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY
HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
22.
Governing Law. This EULA is governed by the laws of the State of Utah
without regard to conflict of law principles. If a lawsuit or court proceeding is
permitted under this EULA, then you and TAFI agree to submit to the personal and
exclusive jurisdiction of the state courts and federal courts located within Salt Lake
County, Utah for the purpose of litigating any dispute. We operate the Service from
our offices in Utah, and we make no representation that Materials included in the
Service are appropriate or available for use in other locations.
23.
General. This EULA is the entire and exclusive understanding and agreement
between you and TAFI regarding your use of the Service. Except as expressly
permitted above, this EULA may be amended only by a written agreement signed
by authorized representatives of all parties to this EULA. You may not assign or
transfer this EULA or your rights under this EULA, in whole or in part, by operation of
law or otherwise, without our prior written consent. We may assign this EULA at any
time without notice or consent. The failure to require performance of any provision
will not affect our right to require performance at any other time after that, nor will
a waiver by us of any breach or default of this EULA, or any provision of this EULA,
be a waiver of any subsequent breach or default or a waiver of the provision itself.
Use of section headers in this EULA is for convenience only and will have no impact
on the interpretation of any provision. If any part of this EULA is held to be invalid or
unenforceable, the unenforceable part will be given effect to the greatest extent
possible, and the remaining parts will remain in full force and effect. Upon
termination of this EULA, Sections 2, and 4 through 25, and any other
accompanying agreements, will survive.
24.
Dispute Resolution and Arbitration
24.1.
Generally. In the interest of resolving disputes between you and TAFI in the
most expedient and cost effective manner, you and TAFI agree that every dispute
arising in connection with this EULA will be resolved by binding arbitration.
Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator
instead of a judge or jury, may allow for more limited discovery than in court, and
can be subject to very limited review by courts. Arbitrators can award the same
damages and relief that a court can award. This agreement to arbitrate disputes
includes all claims arising out of or relating to any aspect of this EULA, whether
based in contract, tort, statute, fraud, misrepresentation, or any other legal theory,
and regardless of whether a claim arises during or after the termination of this
EULA. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS EULA, YOU
AND TAFI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN
A CLASS ACTION.
24.2.
Exceptions. Despite the provisions of Section 24.1, nothing in this EULA will
be deemed to waive, preclude, or otherwise limit the right of either party to: (a)
bring an individual action in small claims court; (b) pursue an enforcement action
through the applicable federal, state, or local agency if that action is available; (c)
seek injunctive relief in a court of law; or (d) to file suit in a court of law to address
an intellectual property infringement claim.
24.3.
Arbitrator. Any arbitration between you and TAFI will: (a) be settled under the
Federal Arbitration Act; (b) be governed by the Commercial Dispute Resolution
Procedures and the Supplementary Procedures for Consumer Related Disputes
(collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as
modified by this EULA; (c) be administered by the AAA; and (d) if an arbitration
hearing is held, take place at a mutually-agreed location in Salt Lake County, Utah.
The AAA Rules and filing forms are available online at www.adr.org, by calling the
AAA at 1-800-778-7879.
24.4.
Notice; Process. A party who intends to seek arbitration must first send a
written notice of the dispute to the other party by certified U.S. Mail or by Federal
Express (signature required) or, only if such other party has not provided a current
physical address, then by electronic mail (“Notice”). TAFI’s address for Notice is:
TAFI, 224 south 200 west, Suite 250, Salt Lake City, Utah 84101. The Notice must:
(a) describe the nature and basis of the claim or dispute; and (b) set forth the
specific relief sought (“Demand”). The parties will make good faith efforts to resolve
the claim directly, but if the parties do not reach an agreement to do so within 30
days after the Notice is received, you or TAFI may commence an arbitration
proceeding. During the arbitration, the amount of any settlement offer made by you
or TAFI must not be disclosed to the arbitrator until after the arbitrator makes a final
decision and award, if any. If the dispute is finally resolved through arbitration in
your favor, TAFI will pay you the highest of: (i) the amount awarded by the
arbitrator, if any; (ii) the last written settlement amount offered by TAFI in
settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
24.5.
Decision. Regardless of the manner in which the arbitration is conducted, the
arbitrator must issue a reasoned written decision sufficient to explain the essential
findings and conclusions on which the decision and award, if any, are based. The
arbitrator may make rulings and resolve disputes as to the payment and
reimbursement of fees or expenses at any time during the proceeding and upon
request from either party made within 14 days of the arbitrator’s ruling on the
merits.
24.6.
No Class Actions. YOU AND TAFI AGREE THAT EACH 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. Furthermore, unless both you and TAFI agree otherwise, the arbitrator
may not consolidate more than one person’s claims, and may not otherwise preside
over any form of a representative or class proceeding.
24.7.
Modifications to this Arbitration Provision. If TAFI makes any future change to
this arbitration provision, other than a change to TAFI’s address for Notice, you may
reject the change by sending us written notice within 30 days of the change to
TAFI’s address for Notice, in which case your account with TAFI and your rights to
the Service will be immediately terminated and this arbitration provision, as in
effect immediately prior to the changes you rejected will survive.
24.8.
Enforceability. If Section 24.6 is found to be unenforceable or if the entirety of
this Section 24 is found to be unenforceable, then the entirety of this Section 24 will
be null and void and, in that case, the parties agree that the exclusive jurisdiction
and venue described in Section 22 will govern any action arising out of or related to
this EULA.
25.
Consent to Electronic Communications. By using the Service, you consent to
receiving certain electronic communications from us. You agree that any notices,
agreements, disclosures, or other communications that we send to you
electronically will satisfy any legal communication requirements, including that
those communications be in writing.
26.
Contact Information. The Service is offered by TAFI, located at 224 South 200
West, Suite 250, Salt Lake City, Utah 84101. You may contact us by sending
correspondence to that address or by emailing us at [email protected]
