BARFLIZ TERMS OF SERVICE & PRIVACY
PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. THESE TERMS OF SERVICE INCLUDE AN AGREEMENT TO ARBITRATE THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY OR ANY OTHER COURT PROCEEDINGS OR CLASS ACTIONS OF ANY KIND. SEE SECTIONS 10.1-10.10 BELOW FOR THE TERMS OF THIS ARBITRATION AGREEMENT.
LICENSE AND LIMITATIONS
1.1. Limited License. Subject to your agreement and continuing compliance with these Terms and any other relevant Barfliz policies, Barfliz grants you a non–exclusive, non–transferable, revocable limited license to access and use the Service using a web browser or mobile device solely for your own non–commercial entertainment and communication purposes. You agree not to use the Service for any other purpose. You are required to send and receive, at your cost, electronic communications related to the Service, including without limitation, messages to and from other users of the Service, and administrative messages, service announcements, diagnostic data reports, and application updates, from Barfliz, your mobile carrier or third-party service providers. You are solely responsible for obtaining any additional subscription or connectivity services or equipment necessary to access the Service, including but not limited to the payment of all third-party fees associated therewith, including fees for information sent to or through the Service.
1.2. License Limitations. Any use of the Service in violation of these license limitations or these Terms is strictly prohibited and can result in the immediate revocation of your limited license granted in these Terms, and may subject you to liability for violations of law and these Terms. Any attempt by you to disrupt or interfere with the Service including undermining or manipulating the legitimate operation of any application is a violation of these Terms and may be a violation of the law. You agree that you will not, under any circumstances, do any of the following:
1.2.1. Use, design, or assist in the design of cheats, exploits, automation software, bots, hacks, mods, or any unauthorized third-party software designed to modify or interfere with the Service or any Barfliz application experience;
1.2.2. Modify or cause to be modified any files that are a part of the Service;
1.2.3. Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service or any Barfliz application environment; or (2) the enjoyment of the Service or any Barfliz application by any other person;
1.2.4. Institute, assist, or become involved in any type of attack, including but not limited to distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person's use or enjoyment of the Service;
1.2.5. Attempt to gain unauthorized access to the Service, accounts registered to others, or to the computers, servers, or networks connected to the Service by any means other than the user interface provided by Barfliz, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service;
1.2.6. Engage in any act that Barfliz deems to be in conflict with the spirit or intent of the Service, including, but not limited to, circumventing or manipulating these Terms, our application rules, application mechanics or policies;
1.2.7. Improperly use Barfliz support services;
1.2.8. Use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
1.2.9. Use the Service or any part thereof for any commercial purpose, including but not limited to any commercial advertisement or solicitation or (2) to gather or transfer Virtual Items (as defined below) for sale;
1.2.10. Transmit unauthorized communications through the Service, including junk mail, junk messages, spam, and any materials that promote malware, spyware, and downloadable items;
1.2.11. Post any information that is abusive, threatening, obscene, defamatory, libelous, racially, sexually, religiously, or otherwise objectionable or offensive;
1.2.12. Post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content;
1.2.13. Attempt to, or harass, bully, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, or group, including Barfliz employees and/or customer service representatives;
1.2.14. Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other rights of any person or entity or impersonates any other person, including but not
limited to a Barfliz employee and/or customer service representative;
1.2.15. Use any unauthorized third-party software that accesses, intercepts, “mines,” or otherwise collects information from or through the Service or that is in transit from or to the Service, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Service to store information about Barfliz application elements or environment. Barfliz may, at its sole and absolute discretion, allow the use of certain third-party user interfaces;
1.2.16. Intercept or observe any proprietary communications protocol used by a user, client, server, or Service, whether through the use of a network analyzer, packet sniffer, or other device;
1.2.17. Make any automated use of the system, or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
1.2.18. Bypass any robot exclusion headers or other measures that are intended to restrict access to the service or use any software, technology, or device to send content or messages, scrape, spider, or crawl the Service, or harvest or manipulate data;
1.2.19. Use, facilitate, create, or maintain any unauthorized connection to the Service, including but not limited to any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service or any connection using programs, tools, or software not expressly approved in writing by Barfliz;
1.2.20. Except where permitted by law or relevant open source licenses, reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service, or to obtain any information from the Service using any method not expressly permitted by Barfliz;
1.2.21. Copy, modify, or distribute rights or content from any Barfliz site or application, or Barfliz copyrights or trademarks or use any method to copy or distribute the content of the Service except as specifically allowed in these Terms of Service.
1.2.22. Except as intended by the Barfliz application, solicit or attempt to solicit personal information from other users of the Service;
1.2.23. Collect, harvest, or post anyone's private information, including personally identifiable information (whether in text, image, or video form), identification documents, or financial information through the Service;
1.2.24. Upload or transmit or attempt to upload or transmit, without Barfliz express permission, any material that acts as a passive or active information collection or transmission mechanism;
1.2.25. Create an Account or access the Service if you are under the age of 13;
1.2.26. Fail to monitor your account to restrict use by unauthorized minors or fail to deny access to children under the age of 18; (You accept full responsibility for any unauthorized use of the Service by minors in connection with your account.
1.2.27. Have more than one account, per platform or SNS, at any given time, or create an account using a false identity or information, or on behalf of someone other than yourself;
1.2.28. Create an account or use the Service if you are a convicted sex offender;
1.2.29. Have an account or use the Service if you have previously been removed by Barfliz or previously been banned from any Barfliz application;
1.2.30. Use the Service if you are located in a country embargoed by the United States or if you are on the U.S. Treasury Department's list of Specially Designated Nationals. Further, you will comply with all applicable U.S. and non–U.S. export control and trade sanctions laws (“Export Laws”). You will not, directly or indirectly, export, re–export, provide, or otherwise transfer the Service: (a) to any individual, entity, or country prohibited by Export Laws; (b) to anyone on U.S. or non–U.S. government restricted parties lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical, or biological weapons, or missile technology applications without the required government authorizations. You will not use or download the Service for any purpose prohibited by Export Laws, and you will not disguise your location through IP proxying or other methods.
1.2.31. Sublicense, rent, lease, sell, trade, gift, bequeath or otherwise transfer your account or any Virtual Items associated with your account to anyone without Barfliz written permission; or
1.2.32. Access or use an account or Virtual Items that have been sublicensed, rented, leased, sold, traded, gifted, bequeathed, or otherwise transferred from the original account creator without Barfliz permission.
1.3. Username and Password and cell phone number. During the account creation process, you will be required to select a username and password (collectively, “Login Information”). The following rules govern the security of your Login Information: (a) you agree not to share your Login Information with any other person, let anyone else access your account, or do anything else that might jeopardize the security of your account; (b) in the event you become aware of or suspect any breach of security, including but not limited to any loss, theft, or unauthorized disclosure of the Login Information, you agree to immediately notify Barfliz and modify your Login Information; (c) you are solely responsible for maintaining the confidentiality of the Login Information, and you agree to be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and (d) you are responsible for anything that happens through your account. We reserve the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party's rights.
2.1. User Content. “User Content” means any communications, images, sounds, and all the material, data, and information that is uploaded or transmitted through a Barfliz application client or the Service, including but not limited to any chat text, voice communications, IP addresses, and your personal information.
2.3. Information Disclosed Through the Service.
2.3.1. Responsible For Your Own Content. You are solely responsible for all User Content that you post on, through, or in connection with the Service and that you provide to others. User Content uploaded by other users (for instance, in their profiles) may, in whole or in part, be unauthorized, impermissible, or otherwise violate these Terms of Service, and Barfliz assumes no responsibility or liability for such User Content. If you become aware of misuse of the Service by any person, please report it to us. We may reject, refuse to post, or delete any User Content for any or no reason, including, but not limited to, User Content that in the sole judgment of Barfliz may violate these Terms of Service. We reserve the right to limit the storage capacity of User Content that you post on, through, or in connection with the Service.
2.3.2. Public Disclosure. The Service may include various public forums, profiles, blogs, and chat features where you can post User Content, including your observations and comments on designated topics. Other members may use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential or do not want others to use, do not post it on the Service. Barfliz has no responsibility to evaluate, use, or compensate you for any ideas or information you choose to disclose. If you submit suggestions, proposals, comments, feedback, or other materials (collectively “Submissions”) within the Service, you understand and agree that Barfliz (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may use your Submissions for any purpose in any way without notice or compensation to you. Barfliz is not responsible for any user's misuse or misappropriation of any user content you post in any forums, profiles, blogs, chats, or otherwise in the service.
2.3.3. Our Disclosure of Your Information. Your User Content, including the contents of all of your online communications (including but not limited to chat text, voice communications, IP addresses and your personal information) may be accessed and monitored as necessary to provide the Service and may be disclosed by us for any reason, including, but not limited to, (i) when we have a good faith belief that we are required to disclose the information in response to legal process (for example, a court order, search warrant, subpoena or other valid third–party discovery request); (ii) to satisfy any applicable laws; (iii) when we believe that the Service is being used in the commission of a crime, including, but not limited to, to report such criminal activity or to exchange information with other companies and organizations for the purposes of fraud protection and credit risk reduction; (iv) when we have a good faith belief that there is an emergency that poses a threat to the health or safety of any person or the public generally; and (v) to protect the rights or property of Barfliz, including, but not limited to, to enforce our Terms of Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring, access, and disclosure.
2.4. User Interactions and Text Messaging Services. You acknowledge and agree that, by signing up for the Services using your mobile phone number, you expressly consent to receive marketing and Services-related text (SMS) and multimedia (MMS) messages from Barfliz and its representatives, and that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and that you are authorized to opt-in to receive messages at that number. You acknowledge and agree that such messages may be sent using an automatic telephone dialing system or other technology. In addition, the Service permits you to create and manage content and then initiate the transmission of such content to other individuals over communications networks, including wireless operator/carrier networks for ultimate delivery to mobile devices. By registering for the Service and providing access to your telephone contacts, the Service may assist you in identifying contacts that you have in common with other users of the Service and to whom you can initiate messages inviting such contacts to join the Service. You agree and warrant that you, and not Barfliz, initiate the transmission of any data or content through the Service, and you will not violate any federal, state, local, or foreign laws, rules, or regulations. You further agree that the subscribers of the phone numbers to which you initiate any SMS or MMS messages through the Service have consented or otherwise opted into the receipt of your messages and any other related administrative text messages from Barfliz as required by any applicable law or regulation. You or your contacts no longer wishing to receive such messages can opt out of receiving further SMS or MMS messages from or through Barfliz at any time by responding to such messages with the single-word command, “STOP.” If you have an account, you can also opt out of such messages by changing the settings within the application. You agree and warrant that you will follow these instructions to opt out of receiving SMS or MMS messages from or through Barfliz and that you understand that deleting or installing the application, or blocking the phone number that delivers SMS or MMS messages, is not sufficient to opt you out from receiving SMS or MMS messages. You agree to notify Barfliz in the event that your telephone number, or the telephone number of one of your contacts, has changed, and to update such information within the Service. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service or Barfliz applications. If you have a dispute with one or more users, you release Barfliz (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, including, but not limited to, damages for loss of profits, goodwill, use or data. 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 or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.” If you are a resident of another state, you hereby waive any similar provision in your state law applicable to releases.
3.1. SUSPENSION AND TERMINATION OF ACCOUNT AND SERVICE WITHOUT LIMITING ANY OF OUR OTHER REMEDIES, WITH OR WITHOUT NOTICE TO YOU, WE MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR Barfliz SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR OTHERWISE ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. YOU CAN LOSE YOUR USER NAME AND PERSONA AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, INCLUDING ALL VIRTUAL ITEMS, AND YOU SHALL NOT HAVE ANY RIGHT TO COMPENSATION OR REMEDY FOR ANY SUCH LOSSES OR RESULTS.
We reserve the right to cease offering or supporting the Service or a particular application or part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, Barfliz shall not provide refunds, benefits, or other compensation to users in connection with such discontinued elements of the Service. Termination of your account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
4.1. Our Applications and Service. The Service (including but not limited to any applications, titles, computer code, themes, objects, characters, character names, stories, dialogue, catchphrases, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in–application chat transcripts, character profile information, recordings of applications played using a Barfliz application client, and the Barfliz application clients and server software) are copyrighted works owned by Barfliz Holdings, Inc. Barfliz reserve all rights, including, but not limited to, all intellectual property rights or other proprietary rights in connection with the Service.
4.2. Accounts. Notwithstanding anything to the contrary in these Terms, you acknowledge and agree that you have no ownership or other property interest in an account, and you further acknowledge and agree that all rights in and to an account are and are forever owned by and inure to the benefit of Barfliz. Accounts created with us, through the Service, or in a Barfliz application will be considered active until we receive a user request to deactivate or delete them or until we elect to terminate them in accordance with these Terms. You acknowledge and agree that Barfliz will retain account information for deactivated accounts until we receive a user request to delete them or until we elect to delete them at our sole discretion. We additionally reserve the right to terminate any accounts that we deem inactive.
Copyright Notices and Complaints
5.1. We respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. Barfliz reserves the right to terminate without notice any user's access to the Service if that user is determined by Barfliz, in Barfliz sole discretion, to be an infringer. In addition, Barfliz accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Barfliz to delete, edit, or disable the User Content in question, you must provide Barfliz with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Barfliz to locate the material; (d) information reasonably sufficient to permit Barfliz to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement under penalty of perjury that all information in the notification is accurate and that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Barfliz designated agent at:
Email Address: legal (at) barfliz.com
If you believe that your User Content has been removed by mistake please provide Barfliz with all of the following information: (a) identification of your User Content which was removed, including the URL on the Service where it previously appeared; (b) information reasonably sufficient to permit Barfliz to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (c) a statement that you have a good faith belief that your User Content was removed in error or was misidentified; and (d) a statement that the information in the notification is accurate is given under penalty of perjury. For this notification to be effective, you must provide it to Barfliz designated agent at the address set forth above.
6.1. Service. You understand that the Service is evolving. We may require that you accept updates to the Service and to the applications you have installed on your computer or mobile device. You acknowledge and agree that Barfliz may update the Service with or without notifying you. You may need to update third-party software from time to time in order to receive the Service and use our applications.
7.1. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON–INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF THIRTY DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED UNDER APPLICABLE LAW). WITHOUT LIMITING THE FOREGOING, NEITHER Barfliz NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD– PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “BARFLIZ PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR–FREE.
7.2. LIMITATIONS; WAIVERS OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED IN THESE TERMS APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO THE USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, BUT NOT LIMITED TO, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE BARFLIZ PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE BARFLIZ PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE BARFLIZ PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE BARFLIZ PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID BARFLIZ IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID Barfliz ANY AMOUNTS IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH BARFLIZ IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU. IN PARTICULAR, NOTHING IN THESE TERMS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OR FRAUD OF BARFLIZ.
7.3. Indemnification. You shall indemnify, save, and hold harmless Barfliz, its affiliated companies, contractors, employees, agents and its third–party suppliers, licensors, and partners from any claims, losses, damages, liabilities, including legal fees, and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you in these Terms. Barfliz reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Barfliz, and you agree to cooperate with Barfliz defense of these claims. Barfliz will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your account or of the Service.
AGREEMENT TO ARBITRATE
8.1. Arbitration. Please read the following arbitration agreement in this Section 10 (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Barfliz, its parent companies, subsidiaries, affiliates, successors and assigns, and all of its and their respective officers, directors, employees, agents and representatives (collectively, the “Barfliz Parties”) and limits the manner in which you can seek relief from the Barfliz Parties.
8.2 Applicability of Arbitration Agreement. You agree that any dispute, claim or controversy arising out of, relating to, or in any way connected to your access to or use of the Service, any communication you receive through or relating to the Service, or these Terms (including this Arbitration Agreement), will be resolved exclusively by binding arbitration on an individual basis, rather than in court, except that: (i) 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 (ii) you or the Barfliz Parties 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 does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the Barfliz Parties on your behalf.
IF YOU AGREE TO ARBITRATION WITH THE BARFLIZ PARTIES, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN, OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN, ANY LAWSUIT OR PROCEEDING FILED AGAINST ANY BARFLIZ PARTIES ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE BARFLIZ PARTIES 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 THESE TERMS, INCLUDING THIS ARBITRATION AGREEMENT.
8.3 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 legal (at) barfliz.com.
The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys and other legal fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing, and/or other fees and cannot obtain a waiver from JAMS, Barfliz will pay them for you. In addition, Barfliz will reimburse all such JAMS’s filing, administrative, hearing, and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, the Barfliz Parties will not seek attorneys’ and other legal fees and costs in arbitration unless the arbitrator determines the claims are frivolous. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
8.4 Authority of Arbitrator. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement, including but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Barfliz Parties. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Barfliz Parties.
8.5 Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 10.2, YOU AND THE BARFLIZ PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Barfliz Parties are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 10.2 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration 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.
8.6 Waiver of Class or Consolidated Actions. BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU AND EACH OF THE BARFLIZ PARTIES AGREE THAT EACH MAY BRING CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. 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, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this paragraph’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in a court of competent jurisdiction. All other claims will be arbitrated.
8.7 Thirty-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt-out to legal (at) barfliz.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, and the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
8.8 Severability. 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.
8.9 Survival of Arbitration Agreement. This Arbitration Agreement will survive the termination of your relationship with Barfliz.
8.10 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Barfliz makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective via email directly legal (at) barfliz.com.
9.2. Supplemental Policies. Barfliz may publish additional policies related to specific services such as applications for mobile devices, forums, contests, or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
9.7. Amendment. Except as expressly and specifically set forth in this these Terms of Service, no representations, statements, consents, waivers, or other acts or omissions by either party shall be deemed a modification of these Terms of Service nor be legally binding, unless documented in physical writing. For purposes of this provision, “writing” does not include an email message and a signature does not include an electronic signature.
9.9. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms of Service to Barfliz are of a unique and irreplaceable nature, the loss of which will irreparably harm Barfliz and that cannot be replaced by monetary damages alone. Accordingly, Barfliz is entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or any Barfliz application, exploitation of any advertising, or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 9 (if any).
9.10. Force Majeure. Barfliz shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Barfliz, including but not limited to any failure to perform hereunder due to unforeseen circumstances or cause beyond Barfliz control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
9.11 Notice For California Users. Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445–1254 or (800) 952–5210.
9.12. Governing Law. These Terms shall be governed by the laws of the State of Delaware, United States of America, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods will not apply.
9.13. Exclusive Jurisdiction. To the extent that these Terms allow you or us to initiate litigation in a court, both you and we agree that all claims and disputes (whether contract, tort, or otherwise), including statutory claims and disputes, arising out of or relating to the Terms or the use of the Services will be litigated exclusively in the state or federal courts located in Lewes, Delaware. Both you and we consent to the personal jurisdiction of such courts.
Effective: April 6, 2023